All posts by 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.

The Curious Provisions of the Rolling Stone Settlement

Rolling Stone magazine recently settled a defamation lawsuit over their falsely reported article about a gang rape at UVA’s Phi Kappa Psi fraternity. The $1.65 million settlement seems like a win/win for the two parties. It’s hardly surprising that Rolling Stone settled. If the magazine couldn’t prevail against Dean Nicole Eramo, it certainly faced a loss against the people Sabrina Rubin Erdely’s article falsely deemed monstrous rapists. For the fraternity, a settlement now allows the process to be brought to a close and avoids lengthy litigation.

There was, however, one striking aspect of the settlement. In a statement released to the Washington Post, Brian Ellis, a spokesperson for the fraternity, revealed that “the chapter looks forward to donating a significant portion of its settlement proceeds to organizations that provide sexual assault awareness education, prevention training and victim counseling services on college campuses.”

This struck me as a very odd decision, given the specifics of this case (the students were wrongly accused, and these “organizations” joined the crusade against them). It would be as if, after the Duke lacrosse case, the wrongfully accused students would have ignored the Innocence Project (with which they have, in fact, been actively involved), and instead focused on raising funds for the North Carolina NAACP. That organization might well do good work—but its sole role in the lacrosse case was to harm the students.

Rolling Stone Rape Hoax
Rolling Stone Rape Hoax

So, I asked Ellis if the statement meant that the fraternity would not be donating to organizations that promoted campus due process (such as FIRE) or that advocated on behalf of the wrongfully accused (such as the Innocence Project)—issues that seemed more relevant given the experience of the fraternity members. His response: “They just reached a settlement, so the fraternity has not reached the stage of determining how it will allocate the funds. The statement is a demonstration of their commitment to helping to address the issue on the UVA campus.”

Of course, I hadn’t asked for the how the funds would be allocated; I only had wanted to know which type of groups would receive settlement funds. Given that Ellis was able to identify three types of groups to the Post—sexual assault awareness education, prevention training, and victim counseling services—it’s hard to interpret his statement as anything other than an admission that no settlement money will go to advocates of due process or the falsely accused.

Moreover, at least with regards to UVA, the primary “issue” associated with this case was how the UVA administration, much of its faculty, the leadership of its campus newspaper, and a variety of student groups (including the student government) rushed to judgment when facing heinous allegations against their students—and then, once the case collapsed, acted as if the allegations were true anyway. Examples included a high-ranking figure at the campus newspaper chastising the national media for doing too much fact-checking and the student government (after the story had been discredited) urging that the state of Virginia learn from the case and change state law to make all rape trials secret. (Stuart and I cover these examples, and many others, in the final chapter of

Examples included a high-ranking figure at the campus newspaper chastising the national media for doing too much fact-checking and the student government (after the story had been discredited) urging that the state of Virginia learn from the case and change state law to make all rape trials secret. (Stuart and I cover these examples, and many others, in the final chapter of our book.)

Indeed, it seems likely that Rolling Stone would never have targeted Phi Kappa Psi but for the actions of a UVA employee, Emily Renda—someone hired, to borrow Ellis’ words, to address “sexual assault awareness education, prevention training, and victim counseling services on” UVA’s campus. It was Renda who first publicized Jackie’s tale (in testimony to Congress that does not appear to have been retracted), and who then passed on information about Jackie to Erdely.

So, in the end, the wrongfully accused fraternity members have promised to give a portion of their settlement money to the very type of organizations that produced the Renda hire. Quite remarkable.

The settlement money, of course, is Phi Kappa Psi’s; they can donate it to whatever groups they wish. But the fact that a group that was defamed as rapists would turn around and give money to the type of groups that amplified the defamation they experienced speaks volumes as to the frenzied atmosphere on campus today.

An imperfect Way to Fight Unfair Sexual Accusations

Too often on campus, the best chance for a wrongfully accused student to achieve justice involves a lawsuit after the campus tribunal has done its worst. A system that uses the lowest standard of proof, allows accusers to appeal not-guilty findings, lacks mechanisms for mandatory discovery of exculpatory evidence, denies meaningful (or any) representation by counsel, and prohibits direct cross-examination is almost, by definition, unjust.

As FIRE’s Samantha Harris has long observed, courts are an imperfect vehicle to protect campus due process as a whole; the nature of due process lawsuits makes it difficult for courts to do anything more than address the facts of a single case. (The Brandeis decision comes closest to a judicial declaration that a university’s sexual assault process violated the Constitution.) Moreover, a lawsuit can cost tens or even hundreds of thousands of dollars—well beyond the means of many middle-class or poor families.

It is, therefore, nothing short of preposterous to suggest that the myriad due process lawsuits illustrate the “powerful legal incentives” for colleges to handle sexual assault complaints “fairly.” Yet this was the claim of one prominent defender of the Obama administration’s efforts to weaken campus due process—my own institution’s president, Michelle Anderson. She added that “campuses are responding—as they must—when accused students prevail.” The extensively footnoted article contained no footnote for this assertion.

When Innocence Isn’t Enough

Anderson’s words would be cold comfort to accused students from Miami (Ohio), Case Western, or the University of California-San Diego. In the Miami case, Judge Michael Barrett noted that the accused student had “alleged facts which cast doubt on the accuracy of the outcome.” Indeed, the “discrepancy between [the accuser’s] written statement—‘I never said no’—and the finding that [the accuser] asked [the accused student] to stop casts serious doubt on the accuracy of the outcome of the Administrative Hearing [emphasis added].” Yet Judge Barrett concluded that 6th Circuit precedent prevented him from rectifying the injustice.

In a 2015 case at Case Western, Judge Christopher Boyko concluded that the accused student had made “a plausible claim that [he] was innocent of the charges levied against him and that CWRU wrongly found that [he] committed the offense.” Case Western didn’t give the accused student access to the full case file. The panel refused to ask some of the questions he deemed critical to his defense, and the chairman of the panel treated him with hostility.

The university denied his appeal—after allowing the appeals officer to consider an anonymous letter, to which he was never given access, to be added to his file. Despite noting that this treatment left a “plausible inference that CWRU’s disciplinary hearings were procedurally flawed,” Boyko sided with the university, citing relevant 6th Circuit precedent. The likely innocent student—found guilty after a flawed procedure—was out of luck.

This is, of course, the same circuit at which Judge Martha Daughtrey mused at how students accused of sexual assault are entitled to no more due process than a soldier facing a military board of inquiry. Daughtrey isn’t alone in her judicial indifference of basic fairness. The highest-profile example came in a 2016 appellate decision from California, where a three-judge panel restored the discipline against an accused student at UC-San Diego. The judges reached that conclusion even after one of them publicly compared the UCSD process to a kangaroo court.

Settlements

For those accused students filing outside of the 6th Circuit (or, in the aftermath of the UCSD decision, in California state court), success depends less on the merits of their case than on the judge to whom the case was assigned. For the public, however, even an unsuccessful lawsuit can provide critical insight into the otherwise secret world of campus due process.

Yet in two important respects, the interests of litigants and of the public are at odds. First, and quite understandably, wrongfully accused students want to end the process as soon as possible. In almost all cases, their primary goal is an expungement of their record, given the life-altering consequences of a wrongful finding of sexual assault. The public, by contrast, has an interest in a process lengthy enough to require the university to turn over internal documents relating to its disciplinary process—and to get university disciplinarians under oath.

These two interests most obviously come into conflict in settlement discussions. With the exception of Brown (and, oddly, Brandeis), most colleges and universities have entered into settlement discussions shortly after losing a motion to dismiss. The two most recent settlements—both troubling cases profiled by Ashe Schow—came at Lynn University in Florida and Allegheny College in Pennsylvania. In a twist, both settlements came shortly after court rulings requiring some degree of participation in the lawsuit by the accuser, setting up the possibility of cross-examination that the schools had gone out of their way to prevent.

It’s easy to see why the accused students settled; otherwise, their lives would have been on hold indefinitely. But the settlements also ensured that the public will learn no more about these deeply disturbing cases.

Secrecy

The interests of litigants and the public also are in opposition with regards to publicity. The first round of litigation after the Dear Colleague letter—cases at Xavier, St. Joe’s, Miami (Ohio), and Vassar—all featured students suing in their own names. Now, virtually all suits are filed under “John Doe.”

For reasons recently explained by Judge Philip Simon (in a case at Notre Dame), this shift is in the best interests of justice: the marginal benefits to the public knowing litigants’ identity are overcome by the litigants’ need for privacy. But the shift nonetheless represents a tradeoff and prevents those who cover the cases from getting a better sense of the personalities involved.

The far more troubling new development involves the sealing of all or much of the case file. Such efforts initially came mostly from accusers—in cases at Georgia Tech, St. Thomas, and (involving her subpoena) Amherst. But in two recent cases—James Madison and Notre Dameaccused students have entered into agreements with their universities to file material, including the transcript of the disciplinary hearing, under seal.

It’s understandable why an accused student would want to take such a course—even if innocent, the material in the campus process can be personally embarrassing. And not all of material is permanently shielded from the public—judges can cite from it in their opinions, as the two judges did in the critical due process victories at JMU and Notre Dame. But one reason why I was able to write so extensively about Amherst is that the accused student’s lawyer, Max Stern, placed all aspects of the disciplinary file, including the transcript, into the record, fully open at PACER.

In contrast to the “John Doe” issue, judges should push back on closing non-redacted material from public view. The public has a right—indeed, an obligation—to learn as much as they can about the unfairness of the campus disciplinary process. And as things stand now, due process lawsuits represent the only way for the public to achieve an unvarnished view.

To date, the Trump administration has made no efforts to push back any of Obama’s anti-due process policies. And it’s not at all apparent that, even if they did so, colleges would do much to restore a sense of fairness. So litigation—despite its clear limits—will remain the best avenue for both justice and transparency.

Middlebury Student Government Says No to Free Speech

Middlebury’s response to the disruption of Charles Murray’s invited campus address—followed by the protesters assaulting and injuring Professor Alison Stanger, moderator for the talk—offered little ground for optimism. A statement from the college implied that evidence (albeit ambiguous evidence) existed suggesting that some professors violated the Faculty Handbook in the pre-disruption period. The disruptors themselves received token punishments, as several sympathetic professors supported them in the disciplinary process. The chief of the Middlebury Police Department even denied that the disruptors assaulted Stanger. (“It was more of a scrum. There wasn’t any assault per se.”)

The Middlebury student government, moreover, has seemed intent on confirming the critics’ case about a campus out of control. After repeatedly expressing support, in words and deeds, for the disruptors, the student government concluded its term by rejecting an academic freedom/viewpoint diversity bill, which sponsors Rae Aaron and Jack Goldfield hoped would reaffirm the college’s stated commitment—clearly not upheld in the Murray case—that “officially recognized student organizations may invite to the campus and hear any person of their choosing,” and that “free intellectual inquiry, debate, and constructive dialogue are vital to Middlebury’s academic mission and must be protected even when the views expressed are unpopular or controversial.”

In the body’s first meeting after the Murray disruption and the attack on Stanger, the student government’s co-chair issued an apology—for not convening an “emergency session” before the Murray event, with the goal of appeasing the would-be disruptors. The only resolution the student government passed on the issue was a thinly-veiled effort to urge that the disruptors avoid all punishment for their actions. The measure was approved on a 10-3 vote.

The academic freedom/viewpoint diversity resolution noted that pressure on campus free speech has come from both sides of the ideological spectrum. It urged the administration to champion diverse viewpoints on campus, expressed support for the right of peaceful protest, and looked to have the student government call “upon Middlebury College to allow outside speakers of all viewpoints—assuming they are invited by a student organization, conduct themselves in a lawful manner, and do not physically harass—to speak on campus without the threat of disruption, and to enforce the policies as set forth in the Student Handbook.”

This commonsense proposal generated furious opposition, and ultimately (in a somewhat weakened form) went down to defeat. If nothing else, opponents of free speech on the Middlebury campus are unusually candid in their distaste for the concept. While some critics offered the unusual canard—that a distinction exists between “hate speech” and free speech, and the college needs to crack down on the former—they also presented some intriguing claims.

One student senator, for instance, incredibly asserted that the college had both a statutory (hostile work environment for student employees) and a constitutional (“due process”) requirement to censor. Other student senators claimed that passing an academic freedom resolution would “prioritize” some voices, while ignoring “voices that can’t be heard because of societal pressures”—even though Middlebury has myriad student identity politics groups (and, of course, academic programs as well), while the only students whose voices were suppressed in this affair were those whose group had invited Murray to speak. Several senators justified their vote on grounds that defending free speech could be interpreted as criticism of the student disruptors, who at the time still had not received their (token) discipline.

In perhaps the strangest section of the debate, a co-sponsor of the resolution pointed (appropriately) to the suffrage movement as an organization that used peaceful protest, and the power of ideas, to win support. (She could also have referenced Jon Rauch’s arguments on the importance of free speech to the gay rights movement.) The critics’ response? Using “the women’s right to vote movement is not applicable,” because it was “only white women” who benefited from suffrage.

The minutes also featured a lengthy statement from one of the student disruptors. After speaking of his desire for a “middle path” on the issue of free speech—“I’m not saying Charles Murray has to be arrested if he comes onto our campus (that would be repression/censorship)”—the disruptor affirmed that if “we as a community are going to commit to ending discrimination, we will also have to commit to denouncing speech that constitutes discrimination (either by further normalizing white-supremacy or engendering violent/discriminatory action).” His conclusion? “We must name white supremacy and deprive it of power. Robbing Charles Murray of one platform for his racist pseudoscience is a small but important part of that resistance.”

In an interview with The New York Times, a Middlebury political science professor worried how events of the year showed a failure of teaching, in that many of the college’s students “don’t understand the value of free speech at a college and what free speech really means.” Based on the outcome of the free speech resolution debate, it would be difficult to argue with that assessment.

The Kipnis Lawsuit Seeks to Muzzle the Truth

The lawsuit filed by Northwestern Title IX accuser “Nola Hartley” against best-selling author Laura Kipnis (Unwanted Advances) has attracted substantial attention from both the mainstream media and from commentators; the two best pieces (taking differing approaches to the lawsuit’s merits) come from Robby Soave and Michelle Goldberg. The Kipnis book looks primarily at four cases—one at Colorado and three at Northwestern: Kipnis’ own Title IX witch hunt, and two cases involving former professor Peter Ludlow.

One case involving Ludlow (who seems to be an extremely unsympathetic figure) and an undergraduate student almost certainly ended wrongly; as presented by Kipnis, while Ludlow used horrible judgment, the accuser was unreliable. The second case, which involved Ludlow and a graduate student in his department, prompted the Title IX complaint against Kipnis and is also the subject of the lawsuit.

Related: Professor Laura Kipnis–She Faced Title IX Charges for Writing an Essay 

Three items particularly struck me from Hartley’s lawsuit—which, if anything, makes Kipnis look even more sympathetic than the Title IX allegation Hartley previously filed against Kipnis. The first involved Hartley’s peculiar definition of her own credibility. Northwestern’s investigator, the lawsuit asserts, found Hartley “extremely credible,” and, therefore, by implication, Kipnis should have, too.

Yet Northwestern’s own investigation ultimately did not proceed with the most explosive claim in the case: that Ludlow had sexually assaulted the Ph.D. student. The lawsuit massages this inconvenient fact by asserting that the investigator “found that she did not have enough evidence to determine whether or not a sexual assault had occurred.”

But using the preponderance of evidence standard, “not enough evidence” means that Northwestern’s own investigation deemed Ludlow, not Hartley, more credible on this critical point. (It probably helped that Ludlow was able to show he slept elsewhere on the night in question.) So Hartley is the “extremely credible” accuser whose central allegation even Northwestern didn’t deem credible.

Second, the lawsuit claims that Kipnis inaccurately portrayed the Hartley-Ludlow relationship. It wasn’t, Hartley asserts, the romantic fling that a thousand text messages and emails between the two implied. Kipnis, according to the lawsuit, quoted these text messages out of context. (How she did so must remain a mystery; the lawsuit doesn’t mention even one out-of-context text.)

Related:  A Judge Catches Notre Dame Acting Badly in a Title IX Case

Instead, according to Hartley, Ludlow all but groomed her from the start, inappropriately pressuring her to have a relationship with him in an almost textbook case of sexual harassment. The evidence she presents? Three conversations—each of which, conveniently, seem to have lacked any witnesses—in spring 2011, mid-fall 2011, and at an indeterminate date in late 2011.

It’s possible that Kipnis failed to appreciate that the Hartley-Ludlow relationship can best be reconstructed not by thousands of Hartley’s own words from the time, but instead by three witness-free conversations as Hartley (who the lawsuit describes as “emotionally intimate” with Ludlow) now remembers them. I doubt, however, any court would agree with Hartley on this point.

Third, multiple elements of the lawsuit make Hartley look (to be charitable) odd. She claims, for instance, that Kipnis’ book presented her in a “false light” as “litigious.” And her response to this problem is to sue over Kipnis’ interpretation of events? As part of her grooming claim, she asserts that Ludlow “enrolled” in a seminar, taught by another professor, that she took in her first year as a Ph.D. student. A senior professor “enrolled” in another professor’s class?

Hartley complains that Kipnis’ book “needlessly devotes an entire chapter to Plaintiff.” And the federal court system is the appropriate venue for resolving disputes over an author’s editorial choices? That chapter, Hartley continues, contains “facts never before publicized, and facts that Plaintiff did not want to be publicized,” thereby providing “far more detail” about the Hartley-Ludlow relationship than the “bits and pieces” previously in the public domain. (Again: these descriptions of the Kipnis research effort are Hartley’s.)

Related: Ruined by the Beach Boys and Other Title IX Disasters

Perhaps Hartley didn’t want some of the “facts” Kipnis uncovered to see the light of day—Northwestern’s secret process doubtless was preferable to her—but it’s hard to see the merit in a lawsuit downplaying the importance of “facts” about a widely-publicized case on a widely-publicized issue, and instead seeming to prefer that the public rely on “bits and pieces” of information.

Goldberg criticizes Kipnis for failing to ask Hartley for a comment before the book went to press. Kipnis should have done so if only to avoid this criticism—but there seems to be no chance Hartley would have agreed to speak with her. That said, the book extensively presents Hartley’s own words and actions (as even the lawsuit concedes), primarily by using text messages written by Hartley to Ludlow.

Given that the Kipnis book describes in some detail the claims Hartley presented to Northwestern, gathered from documents (including Northwestern’s Title IX report) obtained by Kipnis in her research, I don’t agree with Goldberg’s assertion that “there’s no indication [Kipnis] ever sought to hear” Hartley’s version of events.

My approach to writing about this issue is to post everything—all documents that I have used in writing about sexual assault and due process, either at Minding the Campus or in the new book, are available on my website. It’s true that Kipnis hasn’t posted the documents from the cases about which she writes. But the lawsuit’s implication that she simply chatted with Ludlow and then accepted his version of events is absurd.

Beyond the exaggerated claims, the baseline premise of the lawsuit is a chilling one: that while the Ph.D. student purportedly “takes no issue with [Kipnis’] choice to write on this topic,” Hartley, as a Title IX accuser, some of whose claims Northwestern accepted, should have a veto power over which “facts” Kipnis can present. This argument should raise grave concerns.-

A Judge Catches Notre Dame Acting Badly in a Title IX Case

Notre Dame stands to lose a Title IX case in an unusual flurry of kangaroo court blunders. It “investigated” the case and came away only with the female’s hostile emails, none of her loving ones (knowing that many emails were missing). When the male contemplated suicide, Notre Dame interpreted those thoughts as “dating violence,” and the male was denied a lawyer on grounds that the procedure was “educational” and not “punitive.” The “non-punitive” action cost him a lot of tuition money, banned him from taking two finals and got him expelled.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by the accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by an accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university involved.

The specifics of the case were a little different from most due process cases. The couple had been in an ongoing relationship, for about a year. The male student (who I’ll call JD) suffered from depression in summer 2016, and this past fall, the accusing student (who I’ll call AS) decided to break things off after JD started sending her text talking about how he might commit suicide. She also reported JD to the Notre Dame Title IX office, which concluded that the texts constituted “dating violence,” since they purportedly manipulated AS.

Related: The Title IX Mess—Will It Be Reformed?

The accusing student then indicated a desire not to move forward with any allegations and reconciled with JD, only to change her mind again and reinstitute charges. Notre Dame immediately issued a no-contact order between JD and AS, to which JD responded by deleting AS’s contact information, and all of the duo’s texts, from his phone. AS, on the other hand, retained their full text message history.

Notre Dame conducted an “investigation,” but for all practical purposes, AS was the university’s investigator—she turned over text messages from her cache, but only ones that made JD look bad. As Judge Simon explained, Notre Dame had no idea that—after AS first went to the Title IX office—AS identified as Jane by the judge:

told him to “Come overrrrrr.” [Id.] He proposed that they “take a nap” and she responded that “I‘M SO PUMPED.” [Id. (emphasis in original).] The following week, on November 7th, Jane asked John if he could sleep over. Jane then implored John to “Come to champaign” (sic), which seems to have been a reference to him meeting her in Champaign, Illinois. She also offered to meet him in Chicago. [Id.] Jane then asked John to come over that day because “she was having a really bad week already and I just wanna cuddle.” The following day they planned to get together again. Jane asked John “where you at (sic)” and he responded that he would “be there in 15 minutes.” Jane’s response demonstrated that she was happy to be seeing him. She said “yayyy.” The next day they planned to meet up again at Chipotle around the noon hour. And then later that night they must have planned another get-together because Jane told John that she was coming “to pick him up.” A week later, on November 15, Jane told John to “sleep overrrrrrrrrrr.” She later had a change of mind and canceled because she needed to study and he responded that that was no problem. John told her that he loved her and Jane responded that “I LOVE YOU TOO.” [emphasis in the original.]

Incredibly, Notre Dame never asked AS to turn over all text messages (which only came to light as part of the litigation). According to the complaint, Notre Dame also ignored copious exculpatory information, including a videotape of AS saying, “I want to fuck up his [JD’s] reputation; I want to make sure he never has a girlfriend . . . here or anywhere . . . and I want him never to be able to have a social life.”

Related: Title IX Tramples Free Speech and Fairness, So Now What?

At this stage of the lawsuit, JD asked for very narrow relief—that Notre Dame allows him to take his two remaining final exams, and give him grades for those courses. Simon granted that request. But the judge’s ruling also indicated grave concerns with three aspects of Notre Dame’s investigation, and his wording suggests this lawsuit could be very difficult for the university to win. He focused on three principal issues:

(1) Evidence. “The University’s investigation might have been arbitrary and capricious,” Simon noted, “for failing to obtain and review the entire context of the couple’s texting history.” Indeed, he added, “the text messages that . . . were not available to the Hearing Panel—text messages showing sleepovers, naps together, invitations to go on trips, and lunch dates—strongly suggest that Jane did not feel threatened or intimidated by John.” In some ways, Notre Dame’s conduct was more egregious than that of the foundational text-message case (Amherst), since here, the university knew that a text message history existed, and still didn’t ask for the whole file. AS conceded in a filing to the court. Her attorney, meanwhile, bizarrely claimed that the lawsuit had left her in threat of “physical” harm.

(2) Procedure. Simon criticized multiple aspects of Notre Dame’s procedure. He noted that the university essentially allowed AS to introduce character evidence but denied JD the same right, seemingly lest the accuser be traumatized. He questioned the university’s denial of direct cross-examination; Notre Dame instead used a “stilted method” of requiring JD to submit questions to the panel, which he hoped they would ask, not allowing “for immediate follow-up questions based on a witness’s answers, and stifling [his] presentation of his defense to the allegations.”

(3) Purpose. Judge Simon appeared baffled by the university’s decision (typical in these circumstances) to deny the accused student a lawyer. And he made clear he didn’t like the university’s response. When asked “why an attorney is not allowed to participate in the hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money—Mr. [Ryan] Willerton, the Director of the Office of Community Standards and a member of the Hearing Panel, told me it’s because he views this as an ‘educational’ process for the student, not a punitive one. This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

This statement was a remarkable denunciation of the kangaroo court structure evident at most universities in sexual assault cases. While Simon termed his comments “conjectural,” it’s hard to see how his mind would be changed on these points, since the facts of Notre Dame’s procedures and text messages already have been established.

Will Notre Dame take from this rhetoric a need to settle? And, more broadly, will other judges learn from this impressively reasoned opinion?

Do Free Speech Students Outnumber the Snowflakes?

As Middlebury initiated what appears to be token punishments (single-term probation) for the students who disrupted the Charles Murray talk, the college’s student government (which has yet to condemn the disruptors in any way) passed a resolution demanding that Middlebury cease all punishment of students under the current college disciplinary code, lest they “contribute to psychological trauma for marginalized students held accountable for disruption.” The vote continued a disturbing pattern of the majority of the Middlebury student body (the measure passed 10-3) seeming to endorse, or at least excuse, the actions of the mob. For a sense of the demonstrators’ hostility to free speech in their own words, listen to this New York Times podcast from Monday.

Countering this news, however, came a recent poll from Yale. Sponsored by the William F. Buckley, Jr. program, the poll found that by a more than 4-to-1 margin, Yale students opposed speech codes; and by a 16-to-1 margin, students endorsed bringing in intellectually diverse speakers, as opposed to forbidding “people from speaking on campus who have controversial views and opinions on issues like politics, race, religion or gender.” While some caveats exist (the pollster, McLaughlin, has a bad track record; and asking the second question in a different way—stressing the purported harm speakers pose to students—might have yielded a less promising result), this result is encouraging.

It also matters, from a policy angle. If, in fact, the Middlebury student government represents the majority viewpoint among most students, then little chance exists for meaningful dialogue on campus, absent very aggressive intervention, likely from trustees and perhaps even from legislators. If, on the other hand, anti-civil liberties activists represent only a minority, then colleges and universities should do more to facilitate events where the more passive (silenced?) minority of students can exchange ideas. Administrators, in particular, could do more, at relatively little cost—perhaps by adopting the University of Chicago principles, perhaps by encouraging faculty to do more to facilitate a broader array of voices speaking on campus.

Along these lines, it might be useful to share a recent experience of mine at Lafayette College. Early in the term, a newly-formed campus organization, the Mill Series, asked me to give a talk on due process and campus sexual assault. It quickly became clear things might not go well; the social media response among campus seemed fairly unfavorable, and the date of the talk had to be changed twice to avoid further inflaming campus constituencies. But the talk wound up going very well. (I’ll link to the video when available on my twitter feed.) Turnout was robust. Some questions were supportive of my thesis; some were skeptical, a few highly skeptical. But all of the questions were well-informed and responded to the actual content of the talk, rather than what the students might have thought I would say when the talk started. A couple of students even noted in the Q+A session, which wound up going several hours, that they had anticipated a somewhat different talk, seemingly because of the hostile pre-talk social media content.

So why did this talk not generate a disturbing response, like Charles Murray’s at Middlebury or Heather Mac Donald’s at Claremont McKenna? First, the organizers—Professor Brandon Van Dyck and Lafayette student Abdul Manan—actively engaged with campus critics before the talk. (Because the Mill Series has no sponsorship, they were volunteering their effort.) Obviously, this type of pre-talk engagement placed an unfair burden on their time, and shouldn’t be a requirement of any talk organizer, but their willingness to be proactive clearly defused a good deal of the tension before I came.

Second, the Lafayette students themselves already had been engaged with the issue of speech on campus. Earlier this semester, the student government had appointed an ad hoc committee to look into whether Lafayette heard from a sufficient variety of speakers. While many of the students who attended my talk (it was an ideologically diverse group) seemed critical of the committee’s work, none questioned the general principle that hearing from people with different views formed an important part of a quality liberal arts education. In a concrete way, the students’ behavior seemed to confirm the findings of the Yale poll.

For understandable reasons, protests like those at Claremont McKenna and Middlebury attract media attention. But to the extent disruptive students can be isolated rather than accommodated, colleges should do so.

CUNY Union Calls for Faculty to Teach Controversial Anti-Trump ‘Resistance’

Imagine if the CUNY administration had issued a general message to all CUNY faculty last year, asking them to “teach resistance” in one of their classes, to focus a “discussion of the [Obama] administration policies relevant to their subject.” Such a move would have been seen as a clear transgression of academic freedom and would have generated strong opposition from the CUNY faculty union, PSC-CUNY, which purports to favor the concept.

It was, therefore, more than surprising to see the union issue a call for all CUNY professors to alter their class time to “teach resistance.” Moreover, the union has urged professors to make a public pledge to support the union’s ideological position, asking CUNY faculty members to affirm: “I plan to integrate into my classes on May 1 how President Trump’s policies affect my area of scholarship and ask my students how they are affected. On May Day I will teach and learn and continue giving CUNY students the tools and knowledge to examine the world—and change it!”

This move is problematic in at least three respects.

First, it’s academically irresponsible. CUNY students—many of whom work to cover their tuition costs—pay for courses in particular academic subjects, not to hear professors’ political opinions. (I’m not a Trump supporter, to put it mildly, but my objections would have been the same if such a policy had been directed against Obama.) There are dozens of events every month, on campus and off, on political subjects; students can encounter those without losing four percent of their class time to extraneous material.

Second, the move shows why the Supreme Court should look closely at the First Amendment concerns of academic dissenters. All CUNY professors, no matter how much they oppose the union’s agenda, are required to pay dues to the union. The PSC is supposed to refund all political expenses to agency fee payers, but a case initiated by my Brooklyn colleague, David Seidemann, exposed how the union played fast and loose with this requirement. In any case, the “teach resistance” event is framed as academic in content, and almost certainly will be charged to agency fee payers. In short, even the tiny percentage of Trump supporters at this public institution will be forced to pay dues for events to “teach resistance” to a President they support. That’s a pretty clear First Amendment concern.

Third, the move raises academic freedom concerns. A principal problem with higher-ed unions is that—unlike a traditional union structure—the higher-ed union’s membership is generally also the academic decisionmaker, giving the union a conflict of interest. I discovered this the hard way in my tenure case: the key people seeking to fire me were other CUNY professors, and thus PSC members. The union provided what would charitably be described as a desultory effort in representing me—since aggressively making my case would have required calling into question the actions of influential members of the Brooklyn branch of the union. (I hired a private attorney, who was excellent, and who had no conflict of interest.)

Put yourself in the position of an untenured Trump supporter among the CUNY faculty (there have to be at least a few). The faculty union—which includes the senior faculty who will vote on your promotion and tenure—has called for you to adjust your curriculum, and, moreover, to publicly pledge to do so. That pressure would be seen as obviously inappropriate if it came from the administration. It’s no less inappropriate coming from the union, especially since the union includes the people who will decide your academic fate, and who will (at least in a token fashion) represent you if you are inappropriately denied tenure.

Hopefully, when the successor case to Friedrichs reaches the Supreme Court, events like “teach resistance” will be in the justices’ minds.

The Office of Civil Rights Is Still Out of Control

As it left office last year, Barack Obama’s administration made one final move in its crusade against campus due process: it requested a massive increase—$30.7 million, or 28.7 percent—in funding for the Office for Civil Rights (OCR). The previous year, at a time when discretionary federal spending was barely rising, the office had received a 7 percent increase.

The Trump “skinny budget” contained an overall cut for the Department of Education, but included no specifics about OCR (or any other Education Department office). Based on its performance of the last six years in higher education, OCR deserves a dramatic reduction in its funding—rather than the huge boost it desires.

The Obama-era request envisions OCR hiring 157 new staff investigators. (OCR had asked for 200 new employees in fiscal year 2016 and received funding that allowed around 50 additional hires.) At a time of limited hiring by the federal government, why would OCR have demanded such a massive personnel increase?

A clue came in a recent article from BuzzFeed’s Tyler Kingkade. Over the past six years, Obama OCR heads Russlynn Ali and Catherine Lhamon—joined by grassroots accusers’ rights organizations such as Know Your IX—encouraged campus accusers to file Title IX complaints against their institutions.

These filings served multiple purposes for Lhamon and Ali. First, each Title IX complaint would give OCR jurisdiction to investigate individual universities, at which point the federal government could impose a “voluntary” resolution letter on the affected institution. These letters lock into place procedures for that school, even if the Trump administration eventually withdraws the Dear Colleague letter.

Second, Title IX complaints provided an opportunity for the Obama administration to stoke the public frenzy around the purported campus rape epidemic. In a highly unusual move, OCR publicized the identities of schools under investigation. This approach pressured the affected institutions to settle quickly while also leaving the impression that many of the nation’s elite institutions were indifferent to the large number of rapists in their midst.

Finally, the complaints provided a rationale for ever more frantic demands for more funding from Congress. As the 2016 budget justification explained, complaints addressing “sexual violence” were “both more complex and more high profile,” and “inadequate staffing” led to intolerable delays in handling the questions.

The resulting surge from a couple of dozen to hundreds of Title IX complaints against colleges and universities might have provided more than enough work for OCR. But, incredibly (and without announcing the shift publicly), Lhamon seized even more authority. According to Kingkade, who would have had no reason to misstate the claim (indeed, his reporting has consistently defended the accusers’ rights cause), Lhamon “expanded all Title IX sexual violence investigations to become institution-wide, so investigators reviewed all cases at a school rather than just the cases that sparked federal complaints.”

To translate: on her way out the door, Lhamon wanted to hire nearly 200 permanent employees, who would work under a true believer (Harvard’s ex-Title IX coordinator), because she had decided OCR would investigate not merely the complaints it received but thousands of other cases, even though no accuser had filed a Title IX complaint about any of these individual cases. On this matter, as on virtually all OCR-related matters during the Obama years, no sign of congressional oversight existed.

It would be difficult to imagine a more wasteful use of federal funds. Reducing OCR’s budget would help to bring the rogue office back under congressional oversight, and likely would force the new OCR head to (at the very least) temper Lhamon’s investigatory zeal.

The new administration will need to make key decisions not only on OCR’s funding level. Trump’s Education Department continues to enforce the flawed 2011 and 2014 guidance for sexual assault cases, which required colleges to use a preponderance of the evidence standard, discouraged cross-examination, instituted double-jeopardy regimes allowing accusers to appeal not-guilty findings, and urged subordinating public university students’ constitutional rights to due process to OCR’s interpretation of Title IX.

The slowness with which Trump has filled executive appointments has maximized the power of Obama holdovers. This situation is especially problematic with OCR, whose current head of enforcement, former Harvard Title IX director Mia Karvonides, dropped into her civil service position a mere three days before Trump was sworn in as president. Karvondes’ rushed appointment leaves the impression that the outgoing administration intended to maintain the unfair Obama rules regardless of what Trump did. Every day that passes without Trump staffers in OCR allows Karvonides to implement her agenda unchecked.

Finally, the Jeff Sessions-led Justice Department must decide to whether to defend Obama’s OCR overreach. The key lawsuit challenging the 2011 Dear Colleague letter—a case from the University of Virginia, which remains pending—was coordinated by FIRE, and filed by lawyer Justin Dillon. The UVA adjudicator, a retired judge, admitted that “there were signs” that the accuser “may have been capable of effective consent,” but nonetheless found the student guilty, in a case that she deemed “very close” and “very difficult.”

The most recent filing in the case came around a month before Obama left office. The Justice Department urged dismissing the student’s complaint on grounds that OCR policies are, basically, set in stone. Since UVA “knows” that “OCR considers the preponderance of the evidence standard to be the only standard consistent” with Title IX, the university would have no choice but to maintain its unfair procedures under threat of punishment from federal bureaucrats—even if a federal court overturned the Dear Colleague letter. Sessions used the excuse of a pending legal fight to reverse Obama’s era Title IX guidance designed to protect transgender teens. Will he defend the Dear Colleague letter, which actually harms accused students?

Moving beyond the Obama-era’s OCR abuses will take years. But Congress exercising the power of the purse is a needed first step in the process.

Duke Reports a Sexual Assault Rate 5 X as High as Our Most Dangerous City

Over the last few years, we have become all but immune to what, under any other circumstances, would be a fantastic claim—that one in five female undergraduates will be victims of sexual assault. This rate would translate to several hundreds of thousands of violent crime victims (with almost all of the incidents unnoticed) annually, and, as Emily Yoffe has pointed out, implies that about the same percentage of female college students are sexually assaulted as women in the Congo where rape was used as a war crime in the nation’s civil war.

Even within this environment of pie-in-the-sky statistics, a recent survey from Duke stands out. According to the survey, 40 percent of Duke’s female undergraduates (and 10 percent of Duke’s male undergraduates) describe themselves as victims of sexual assault. This data would mean that each year, a female undergraduate at Duke is 5.5 times more likely to be a victim of violent crime than a resident of St. Louis, which FBI statistics listed as the nation’s most dangerous city in 2016. And yet, incredibly, parents still spend around $280,000 to send their daughters into this den of crime for four years.

But 88% of Women Feel Safe

As always occurs with these surveys, the internal data renders them highly unreliable. But in this case, the internal data suggests a survey at war with itself. A few examples:

The survey indicates that 88 percent of female undergraduates say they feel safe on campus. So—at a minimum—28 percent of Duke female undergraduates say they feel safe at a school where they experienced sexual assault. Similarly, 74 percent of female undergraduates consider sexual assault a big problem on campus—meaning that at a minimum, 52 percent of female undergraduates feel “safe” on a campus where they think sexual assault is a “big problem.”

The most startling rate of self-described sexual assault victims comes among lesbian and bisexual female undergraduates, 59 percent of whom say they were sexually assaulted while at Duke. And yet, according to a later table, zero female undergraduates list a female as the perpetrator of their assault. Even assuming that every bisexual student surveyed said she was assaulted by a man, this figure would suggest that a significant portion of Duke lesbians are having some type of sexual contact with men (nearly all of whom, it appears, then turned out to have been sex criminals). Could anyone take such data seriously?

If true, these figures would suggest a violent crime epidemic not merely for Duke but for the city of Durham. Significant percentages of the alleged sexual assaults occurred in a category described as “off-campus/local,” thus falling within the jurisdiction of the Durham, rather than the Duke, Police Department. Yet no signs exist of the Durham Police paying more attention to this purported crime wave in their midst, or that the Duke leadership has asked them to do so.

‘Fundamentally Unfair” to Men

At heart of the issue is the extraordinarily broad definition of sexual assault—a term with a common cultural and legal understanding—used in surveys like the Duke one. The survey lumps together being “touched or grabbed” in an unwanted way (61 percent of the self-described victims) with sexual assault by force or threat (22 percent of the alleged victims) as if the severity of the offenses were the same. Even the survey takers appear to recognize the folly of this approach; 41 percent of self-described female sexual assault victims describe the experience of being sexually assaulted as not very upsetting—or not upsetting at all. The university’s response? Asking whether this figure indicated “a need for broadly disseminated programming on the impact of sexual misconduct.” Duke already has increased “the number of staff providing counseling and support services and conducting investigations.”

Perhaps the saddest item from the survey: 57 percent feel that students accused of sexual assault are treated fairly. They’re responding to a system in which Duke has had two negative judicial decisions, the most recent of which featured Judge Orlando Hudson characterizing the Duke procedures as “fundamentally unfair.” There is, of course, no reason to believe that most students have any idea just how unfairly Duke treats students accused of sexual assault.

False Rape Reports in Sacred Heart

Last week featured a rarity—the filing of criminal charges against a campus sexual assault accuser. Ashe Schow has a full write-up of the case, which originated when a Sacred Heart University student named Nikki Yovino accused two of the university’s football players of sexually assaulting her.

An affidavit prepared by the local police indicated that the football players were suspended, and thus presumably found guilty. (Sacred Heart has disputed the extent of the students’ punishment.) But Yovino later admitted to police that she made it all up, seeking to engender sympathy from another male student she wanted to date. As Schow points out, this motivation resembles the Jackie case at UVA.

What most struck me, however, was the defense offered by a university spokesperson: “Whenever there is any kind of incident at Sacred Heart University, we go to great lengths to ensure due process for all parties involved. The way that this particular case is playing out certainly demonstrates the validity of our procedures.” [emphasis added] Again, this was a case in which Sacred Heart’s procedures led to the punishments of students who were falsely accused.

Though Sacred Heart promises a “fair process,” nothing in its procedures suggests fairness. The university begins by announcing its dedication to “providing information and resources to the Sacred Heart University community about the risks and myths that contribute to sexual misconduct.” What these “myths” are the procedures don’t reveal, and a Sacred Heart spokesperson did not respond to a request for the information.

The university also uses an affirmative consent policy, which effectively requires accused students to prove their innocence. “Consent,” at Sacred Heart, “cannot be inferred from the absence of a ‘no’; a clear ‘yes,’ verbal or otherwise, is necessary.” The procedures are silent on how “otherwise” can yield a “clear ‘yes,’” and despite a claim to the contrary, other sections of the guidelines outline a policy in which anything short of an ability to prove a verbal “yes” is likely to yield a guilty finding.

The university considers “persons who are intoxicated” while having sex to be victims since they are “lacking the physical and/or mental ability to make informed and rational decisions or judgments.” The policies don’t explain what happens when both students are intoxicated.

Once a charge is filed, the Title IX coordinator, rather than an independent party, investigates. If the coordinator concludes it’s more likely than not that the accused student is guilty, he goes before a hearing panel of two administrators and one professor. This panel hears “the facts of the case from both parties”—but the accused student has no right to cross-examination, no right to call witnesses, and no right to full legal representation.

These procedures are no worse than those employed at many universities, though they also give the lie to the spokesperson’s claim that the institution goes “to great lengths to ensure due process for all parties involved.” But Sacred Heart’s sexual assault procedure has a clause I’ve seen at no other school.

“An allegation that is both intentionally false and malicious,” Sacred Heart explains, “may [emphasis added] be a violation of the Sacred Heart University Student Conduct Code.”

Consider this provision for a moment. A false rape allegation, in and of itself, is not a violation of Sacred Heart’s code—the allegation must be “intentionally” false. (The code provides no description of the distinction between a false and an intentionally false claim.) But even an “intentionally false” claim isn’t a violation—the claim must also be “malicious.” (The code provides no description of the distinction between an intentionally false and an intentionally false/malicious claim.)

But even then—even if Sacred Heart has encountered a sexual assault claim that’s both “intentionally false” and “malicious”—the accuser only “may” be guilty of a code violation. So under certain (unspecified) circumstances, a Sacred Heart student who filed an intentionally false and malicious sexual assault claim against a fellow student still didn’t violate the university’s disciplinary code. It seems that Nikki Yovino found the perfect university to attend.

Panic Over Sex Assault ‘Crime Wave’ Overtakes Yale

In a 2012 resolution agreement with the Office for Civil Rights, Yale became the nation’s only university required to document all sexual assault allegations on campus. The reports, prepared by Yale deputy provost Stephanie Spangler, are generally bare-bones (and became even more so last year after Spangler announced she’d decided to supply less information about some unresolved complaints) but nonetheless provide a peak into the deeply unhealthy atmosphere—at least at elite campuses—regarding the investigation and adjudication of sexual assault complaints. The most recent of the Spangler Reports, which covers events in the last six months of 2016, has now appeared.

Minding the Campus has covered each of the previous Spangler reports, which have included such items as:

As always, Spangler notes that the university “uses a more expansive definition of sexual assault” than does either Connecticut state law or the federal government (through Clery Act requirements). The university has never offered an explanation as to why it does so. The current report, which discusses allegations filed between July and December 2016, adds a vague assertion that it “assigns complaints to general categories such as ‘sexual assault’ . . . that encompass broad ranges of behavior”—but, again, why sexual assault should “encompass broad ranges of behavior” beyond the common legal or cultural understanding of the term remains a mystery.

Fueling the Panic

The Spangler reports always have had the feel of existing to feed the frenzy (while appeasing OCR and justifying Yale’s sprawling Title IX bureaucracy) more than providing accurate information, but the current report seems to go overboard on this matter. It portrays a campus in the midst of a terrifying wave of violent crime—or, more likely, in the midst of a moral panic.

There were 81 reports of some type of sexual harassment at Yale in the last six months of 2016. Spangler seems almost giddy at the news, since “we have noted a sustained increase in the number of complaints brought to the university’s attention in the three reporting periods following” the AAU survey from 2015 (which, using deeply flawed methodology, suggested the nation’s preeminent campuses were hotbeds of felonies).

Spangler never pauses to consider whether this surge of reporting might be fueled by a panicked campus atmosphere to which she, and the Yale administration, have contributed. Instead, she believes that her previous reports—which indicated that a typical female undergraduate at Yale had a greater chance of being a victim of violent crime than a resident of Detroit, which FBI statistics have identified as the nation’s most dangerous city—have shown an insufficiently low number of campus crime victims. The university, she declares, therefore needs to “identify and address barriers to reporting” of sexual assault at Yale. What those barriers could be, given the frenzied atmosphere on campus in recent years, Spangler does not reveal.

Responding to the Yale Crime Wave

Spangler promised only two specific steps to take to meet this campus crime wave. The first is almost comical. “We are,” Spangler writes, “working to shed more light on Yale’s procedures through the creation of additional ‘hypothetical case scenarios’ that address a broad range of behaviors and are tailored to local campus communities.” The existing version of these scenarios was (deservedly) mocked by Cathy Young; and, in any case, they don’t shed light on its procedures—as Yale demonstrated when it didn’t follow them in the Jack Montague case, a point raised in his lawsuit against the university.

The second, however, raises grave academic freedom concerns. Interns in the Title IX Office, Spangler explains, have developed a program to address “patterns of academic and social life particular to the graduate and professional schools.” This program “has been offered in numerous departments.” Yet “academic” issues at the level of academic “departments” are supposed to be the purview of the faculty—not student interns responsible to a Title IX bureaucrat. Yet not only has this initiative not aroused any academic freedom concerns, according to Spangler “demand is high” for future workshops. Faculty, instead, appear to have bowed to the inevitable, as this jargon-laden sentence implies: “Schools and departments across the campus continue to introduce initiatives aimed at identifying and impacting factors that influence local culture.”

Despite the top-line assertion of 81 complaints of sexual harassment, Yale’s disciplinary tribunal, the UWC, handled only one case of sexual assault involving undergraduate students during this six-month period. (The student, unsurprisingly given the guilt-presuming procedures, was found guilty.) One case remains pending, and another withdrew instead of bothering going through the UWC.

New Developments

The current Spangler report departs from its predecessors in five interesting ways. First: several faculty members faced serious allegations, and therefore got a taste of the procedures to which their students have been subjected for years. One was found not guilty of sexual assault, but guilty of violating the school’s policy regarding teacher-student relations. A second is still facing the same charge, with two others currently under investigation on this policy. A fifth was found guilty of sexual harassment—in a case initiated not by any students, but by a Title IX “coordinator.” The professor was suspended for a semester, and prohibited from having any leadership positions or advising any students for five years. And the Title IX office is investigating two other professors for making “inappropriate comments.”

Second: the report features several cases in which students filed complaints not to have another student expelled, but solely to receive an academic accommodation (such as a delay on an exam or paper) from the Title IX office. And some of the allegations were remarkably broad. In two instances, for example, the student complained that another student “paid unwanted attention” to her. By that definition of sexual harassment, any student asking another out for a date would be risking a sexual harassment complaint. The ability of students to game the system by filing complaints to get accommodations is present in all Title IX matters, especially at elite schools.

Third: there appear to have been two cases in which a male filed a complaint against a female. It’s not clear whether there were sexual assault or harassment cases. It’s not clear whether they involved undergraduate or graduate students, or what their disposition was. But it is a trend worth watching.

Fourth: in the last few Spangler reports, a disturbing pattern emerged of Title IX coordinators—rather than accusers—filing sexual assault complaints against Yale undergraduate students. These moves came despite severe restrictions in the Yale guidelines regarding the filing of these complaints. One of the victims of this process was Jack Montague—and after his lawsuit brought attention to the matter, the restrictions vanished. But so too, at least for this reporting period, did the filing of charges against male undergraduate students by the Title IX office. Did the administration instruct the office to lay low on the matter until the Montague suit is resolved?

Fifth: seven sexual assault allegations by undergraduate students received no description from Spangler at all—yet they counted toward her top-line total of 81 cases, helping to fuel the campus panic. Previous Spangler reports would describe this kind of case, which often involved a claim by a student that a second student (whose identity she didn’t know) was sexually assaulted by a third student (whose identity she also didn’t know). Providing this type of information, of course, demonstrated the absurdity of the allegation. So, beginning with her last report, Spangler dropped it.

She wouldn’t want to provide inconvenient facts that might undermine the narrative.

The Downgrading of American History

A little more than a decade ago, I commented on the “re-visioning” of American history—the transformation of “traditional” sub-disciplines such as U.S. political, diplomatic, or military history to have them focus on the themes of race, class, and gender (and, now, ethnicity) that have come to dominate the field. A more recent development, documented by a 2016 ACTA report, has been the elimination of any required courses in U.S. history—even of the “re-visioned” variety. Only 23 of the nation’s 76 leading colleges and universities have such a requirement for History majors.

ACTA’s report is important not merely because of its impressive collection of hard-to-gather data, but because it has led some university History departments to publicly explain why they believe it’s fine for a U.S. university to graduate a History major who hasn’t taken a single course in U.S. history.

According to George Washington’s History Department, the elimination of a U.S. history requirement was purely market-driven—the number of majors had declined, and the department decided that eliminating a U.S. requirement would attract majors. Yet the department kept a far more onerous requirement (a pre-1750 course).

And a comment last month from the department’s director of undergraduate studies—“American history is so dominant at GW that it’s almost unnecessary to tell students that they have to take it. It’s what our students overwhelmingly do”— contradicted the suggestion that the unpopularity of U.S. history explained the decision to eliminate the requirement.

If George Washington’s seemingly illogical explanation for its removal of the U.S. history requirement, the response of the Duke History Department provided a clearer rationale for the problem the ACTA report exposed. Professor Bruce Hall, director of undergraduate studies in Duke’s History Department, asserted that “our goal is to have our students to develop the kind of critical skills that we think are really important for them”—implying that the actual content of History courses is irrelevant to Duke history professors.

Of course, the vast majority of History courses at Duke (or any other university) consist not of the instructor spending dozens of hours talking about “skills,” but of the professor providing information about the past. The “skills” emphasis (a favorite of the AAC&U, among others) provides a way to divert the public’s attention from what actually is being taught in university classrooms.

In the event, a Ph.D. student in the Duke program, Jessica Malitoris, gave the game away, indicating her “worry about the politics of privileging American history.” (Malitoris’ Duke profile affiliates her with the institution’s gender, sexuality, and feminist studies program.) Hall appeared to agree: “We don’t try to communicate an American ideological notion about citizenship—that’s not our goal.”

At least Malitoris was candid in why the department might have eliminated the requirement for U.S. history. (How that line would work with Duke donors, on the other hand, is a different question.) Hall’s remark, meanwhile, is difficult to square with his department’s own mission statement, which proclaims that “we study history for instrumental reasons, to redress the pervasive ‘history deficit’ in political discourse and policy formation.”

(The department’s website doesn’t indicate the nationality of its majors, but it seems safe to assume that the majority, and probably the overwhelming majority, are U.S. citizens, linking the department’s concern with “the pervasive ‘history deficit’ in political discourse and policy formation” to U.S. history.) And Duke University’s own mission statement, as articulated by the Board of Trustees, speaks of providing students with “a sense of the obligations and rewards of citizenship” that Hall appeared to disparage.

Only pressure from trustees is likely to achieve any kind of progress on this issue. As the responses of the Duke and George Washington departments illustrated, and as ACTA’s study documented, it appears that a majority of History professors nationally now believe that it’s OK for a university to graduate History majors who have never taken a course in U.S. history.

Obama OCR Moves to Deter Any Trump Reform

As the Obama administration draws to a close, opponents of campus due process have launched an aggressive public relations campaign on behalf of their agenda, lest change comes with a new regime in the White House.

The highest-profile effort came from Joe Biden, who penned an open letter to the presidents of the nation’s colleges and universities urging them to continue to meet the “epidemic” of campus sexual assault. (This is seemingly the only violent crime “epidemic” in American history in which law enforcement is to have little or no role.)

Perhaps the most striking item in Biden’s letter was his assertion that “twenty-two years ago, approximately 1 in every 5 women in college experienced rape or sexual assault. Today, the number is the same.” Setting aside the absurdity of the statistic (which would imply hundreds of thousands of unidentified victims annually, just among college students), this claim amounted to an admission that the admission’s war on campus due process has done nothing to lower the number of sexual assault victims—which, according to Biden, is at the “same” percentage as 1995.

The Vice President did not once mention due process or civil liberties in his letter.

As Biden released his letter, Democratic senators Bob Casey and Patty Murray pressed the incoming Trump administration to retain Obama’s interpretation that Title IX requires schools to use the lowest standard of proof in sexual assault cases, give sexual assault accusers the right to appeal not-guilty findings, and discourage procedures in which sexual assault accusers can be cross-examined about their allegations.

Portraying campuses in the midst of an unprecedented wave of violent crime, the senators contended that “campus sexual assault is a widespread problem affecting millions of college students across the nation.” The senators did not identify the source for their claim that “millions” of college students are affected by sexual assault. Nor did they explain why these “millions” of crime victims should not be an immediate priority of the nation’s police.

Accusers’ rights groups such as Know Your IX got into the act with a social media campaign demanding that incoming Education Secretary Betsy DeVos make no changes to the Obama administration’s Title IX policies. The implicit message: any effort to restore due process or a semblance of fairness to campus tribunals will be denounced as hostile to “survivors.”

But perhaps the most consequential move to retain the war on campus due process came outside of the public eye. On January 4, the Harvard Crimson broke the news that Harvard’s Title IX administrator, Mia Karvonides, was planning to depart her position abruptly. Karnovides had overseen one of the most unfair adjudication systems for campus sexual assault anywhere in the country.

Karnovides’ new position? Enforcement Director at the Office for Civil Rights (OCR), the agency that has served as the center of the war on campus due process during the Obama administration. Her starting date? January 18, or two days before Barack Obama leaves office. It seems unlikely that Karnovides would have accepted the new position if she lacked civil service protections.

The midnight appointment can only be interpreted as placing a key figure in the bureaucracy to disrupt any Trump administration effort to restore a sense of fairness to Title IX enforcement. Will the new administration respond?

Due Process Wins a Battle Against a University’s Kangaroo Court

Though federal judges tend to uphold a lot of unjust campus decisions in sex-assault cases, Judge Elizabeth Dillon, an Obama appointee, proved on December 23 that some campus procedures are just too outrageous to survive judicial review.

The judge’s due process ruling came in a case out of James Madison University. (You can read her opinion here.) After troubling appellate rulings in California (which approved a process one judge had compared to a kangaroo court) and in the 6th Circuit (where one judge suggested that military court martials represented an appropriate model for campus sexual assault cases), the Dillon ruling is important.

The James Madison case also illustrates the effects of an often- overlooked effect of the 2011 Dear Colleague letter—the requirement that colleges introduce allow accusers to appeal not-guilty findings. As in comparable cases at George Mason and the University of Michigan, at James Madison, this double-jeopardy principle created an additional layer of injustice. Indeed, in all other types of disciplinary cases at JMU, an accusing student can’t appeal a not-guilty finding.

Even in an environment that often features shaky claims, the JMU one was unusually weak: the accuser filed her claim (that she was too intoxicated to have consented) only after learning that the student she’d accused had moved on to another woman; the accuser offered varying dates for the alleged attack; and the accuser’s own roommate, who the accuser had called as one of her own witnesses, told the hearing panel that on the night of the incident, the accuser was “completely fine” and didn’t seem to be drunk.

Despite a hearing that hardly passed as a paragon of due process (the accused student was forced to present his defense before the accuser’s version was offered to the panel), the accused student was found not guilty.

But—thanks to the Dear Colleague letter’s change—the case wasn’t over. The accuser exercised her right to appeal the not-guilty finding, sending the case to a three-professor panel. And the appeals occurred amidst a campus frenzy over the issue of sexual assault. A few months earlier, OCR had commenced a Title IX investigation of the university. A student named Sarah Butters generated national controversy by claiming JMU had insufficiently punished the students who had raped her.

The fall 2014 semester had begun with an editorial from the student newspaper proclaiming that the university’s alleged softness on sexual assault was the issue that “had been on everyone’s mind for these past few months,” and indicated that “we cannot tolerate a culture of sexual assault at our school.” The editors indicated that “our goal is to give our readers the information necessary to empower them to stand up against sexual assault.” The editorial, signed by all members of the paper’s editorial team, did not mention due process as an issue of any concern.

Amidst this atmosphere, the university allowed the accuser to introduce three new pieces of evidence (each of which had been available to her at the time of her complaint) to the appeals panel.

First, she offered a report from a social worker asserting that she was prone to excessive intoxication when drinking because of medication she was taking. (This report had been introduced into the case file before the original panel made its decision, but was never shown to the accused student.)

Second, she produced a statement from a suitemate claiming that the roommate who testified against her had admitted to lying.

Third, she turned over a voicemail from what she claimed was the night of the incident in which she had discussed her intoxication. Sent, she wrote, right after she left the accused student’s residence, the voicemail “emphasizes that I was drunk and unable to give consent to sex.”

Armed with this “evidence” and the audio of the original hearing—but hearing no testimony from the parties, granting the original panel’s credibility determination no deference, and (it appears) using a definition of consent that differed from that in JMU’s own policy—the appeals panel ordered the accused student suspended for five-and-a-half years.

An e-mail sent to a JMU administrator suggested that the voicemail was critical in the outcome; a subsequent email amended the claim to the new witness statements as the key. Oddly, the panel did not issue a written explanation of why it overturned the original panel’s decision; it did not even indicate that it had found the accused student guilty. Its form only indicated that it had “increased” his (previously nonexistent) punishment.

The flawed procedures in this case yielded particularly flawed results.

First, according to subsequent testimony from members of the appeals panel, they credited the claim that the key exculpatory witness (the accuser’s roommate) had lied without ever giving her a chance to respond. Even more incredibly, under JMU policies, the accused student couldn’t ask the roommate to file a rebuttal statement with the appeals panel—because (since she was a witness called by the accuser in the original hearing) he was forbidden from contacting her.

Second, and in violation of JMU rules, the accused student never saw, at any stage of the process, the social worker’s statement. So he never had the chance to hire an expert of his own to rebut it.

Finally, the so-called ‘smoking gun’ voicemail was actually from the night before the incident. Indeed, its introduction suggested that the accuser might have tried to mislead the appeals panel—which the accused student could have pointed out if JMU had given him more than 24 hours to respond to this new “evidence” (which it sent to him in the middle of winter break).

Since he didn’t see the “evidence” in time, he thought he had no chance to impeach it. One of the appellate panelists, Education professor Dana Haraway, later testified that she considered the voicemail significant in her decision. She didn’t learn about the date error until the accused student’s lawyer deposed her in the due process lawsuit against JMU. It’s hard to imagine a more cavalier approach to one of her own institution’s student’s life and reputation. Professor Haraway did not respond to a request for comment.

All of this was too much for Judge Dillon. “No reasonable jury,” she concluded, “could find [the accused student] was given fundamentally fair process. Instead, the undisputed facts show that JMU denied [him] a ‘meaningful hearing.’”

The case, however, will only lurch along. The accused student’s life has been on hold since January 2015; he filed his lawsuit in May 2015. For the next two months, the two sides will present briefs discussing whether JMU should hold a new hearing. At best, he’ll be eligible to re-enroll in the fall 2017 semester (spring 2018 if JMU requests an additional hearing before Judge Dillon)—so would serve at least a five-semester suspension for an offense that appears never to have occurred, because of procedures that were fundamentally unfair.

Judge Dillon’s ruling addressed one other significant point. In 2015, Judge T.S. Ellis (in a factually dicey case out of George Mason) issued one of the most perceptive comments in any due process ruling about the effects of a guilty finding on the accused student. He noted that a university deeming a student a rapist would have enormous consequences on his future educational and earning opportunities—since he’d have no choice, as part of applying to a new school or to any job that required a background check, to produce educational documents showing the university judgment.

JMU’s lawyer denounced this decision, which he termed the “800-pound gorilla or the elephant in the room,” as “wrong” and a “mistake.” (You can read the hearing transcript here.) In JMU’s world, any student who wanted to conceal a wrongful finding of sexual assault could simply not produce his educational records. Judge Dillon rejected this suggestion as the false choice it was.

Unfairness in the Minnesota Football Rape Case

We don’t normally think of college athletes as prominent defenders of due process. Yet perhaps the highest-profile protest against the post-Dear Colleague letter demise of campus due process came last week at the University of Minnesota. Its emergence, the reaction to it, and its quick collapse speaks volumes about the relationship between due process and policies toward sexual assault on the nation’s campuses.

In September, several members of the Minnesota football team were accused of a particularly ugly gang rape. The police investigated, but the prosecutor ultimately declined to pursue charges, largely because a contemporaneous video of the incident (taken by one of the players) showed the accuser (in the words of a police report) “certainly conscious and aware of what is going on”—“lucid” and “alert.”

The university, however, conducted its own investigation and found at least some of the players guilty of the same offense (sexual assault) for which the local prosecutor had concluded he lacked probable cause to indict. Armed with that finding, the university’s athletic department suspended the players—in the process publicly identifying them. This move prompted other members of the football team to threaten to boycott the Holiday Bowl game, only to abandon their move under heavy pressure from the university and the media.

The Limitations of Due Process Protests

The timeline of the Minnesota football team’s response resembles that of the Yale basketball team’s response to the Jack Montague case. In both instances, the team began with examples of high-profile protest. Each member of the Yale team wore Montague’s warm-up shirt before a game. Each member of the Minnesota football team stood behind a statement indicating that university procedures had denied their teammates’ “due process,” in part by finding them guilty of the same offense for which the police had chosen not to bring charges.

Within 48 hours, under what appeared to be heavy internal and external pressure, the teams backed down and issued statements effectively retracting their original protests. In both instances, these statements were radically different in tone and substance from the teams’ original actions and read as if written by a university administrator rather than by college students.

Contrast both the Minnesota and Yale outcomes to that at the University of Missouri. When the Mizzou football team threatened to boycott on behalf of student protesters alleging racial discrimination on campus, the president was fired. The backdowns in the Minnesota and Yale cases, by contrast, provides a reminder of where the power lies in universities on due process issues and sends a message to other students that standing up for due process in sexual assault adjudications will be futile.

The Minnesota case includes one element absent in the Yale matter. Local reports suggest that the players’ unity was in part eroded by the release of the university investigative report. Even construing the incident in the light most favorable to the accused players, this lengthy document revealed an ugly, troubling episode in which the accused players were almost caricatures of unfeeling misogynists. Little wonder the other players then folded. (One of the players has subsequently maintained that the boycott nonetheless will ensure that future accused students are treated fairly, but no signs exist that Minnesota will in any way change its policies.)

Ironically, however, the leaking of the report (to a local TV station) heightened the due process critique the team originally made. The report, of course, was supposed to be confidential. Given its conclusion, and its highly negative character portrayals, it’s inconceivable any of the accused players leaked it. That leaves someone from the accuser’s legal team, or a university official, as the likely source—figures willing to waive the confidentiality requirements when they thought it would be helpful to their side of the case. The report’s leaking, in this respect, casts further doubt on the integrity of the Minnesota adjudication process. Just as with Yale and the Patrick Witt case, however, I wouldn’t hold my breath waiting for an investigation to identify the leaker who violated university policies.

Blue State Laws

The last few years have featured a wave of blue states passing “affirmative consent” laws, which effectively require accused students to prove their innocence. Minnesota hasn’t enacted such a law (though the university does employ the “affirmative consent” standard, thereby defining sexual assault differently than state statutes). But the state did enact a first-in-the-nation law requiring “training” of all campus investigators and adjudicators of sexual assault cases.

The football players’ case was one of the first to be adjudicated under the new standards. This summer, I had asked Minnesota’s Title IX coordinator, Kimberly Hewitt, for a copy of the new training material; she declined to provide it, with a cc to the university public relations office. (I then obtained it through a state public records request.)

I can see why Hewitt wasn’t eager for the material to become public. Minnesota has trained its sexual assault investigators by having them attend an event organized by the Minnesota Coalition Against Sexual Assault; sessions from the National Association of Colleges and Universities; participating in the “Minnesota Campus Sexual Violence Summit”; joining an AAU Survey of Sexual Assault and Sexual Misconduct Webinar; and completing a course organized by the ATIXA Institute, an organization associated with the anti-due process NCHERM.

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

The list of training, therefore, contains no defense lawyers. Nor does it feature a representative of a group devoted to campus civil liberties, like FIRE (or even the ACLU). So Minnesota trains its investigators and adjudicators exclusively from sources that are either neutral or who are ideologically inclined to believe the accuser (and therefore find guilt). Imagine the criminal justice context, of jurors in sexual assault trials (and only sexual assault trials) required to receive “training,” with the training material provided only by the prosecutor and not by the defense.

The effects of this training were apparent in the university investigator’s report. Both the accuser and the accused had inconsistencies in their stories. But the accuser’s inconsistencies enhanced her credibility—“we generally attribute the differences among [her] accounts over time to her gradual recollection of what she found to be a very traumatic experience,” the university report declared—while the accused students’ inconsistencies led the university investigator “to discount their credibility.”

Nothing in the one-sided nature of the training, of course, should obscure the ugliness of the undisputed conduct detailed in the report. (This was, in the light most favorable to the accused players, an episode of group sex amidst underage drinking, while the players were entertaining a high school recruit.) But despite the wording of a statement issued from the president’s office, Minnesota did not suspend several of the players because their behavior conflicted with university values; it suspended them because the university concluded they had engaged in behavior the state considers a felony—even as the prosecutor declined to seek indictments over the same behavior.

Media

Initial coverage of the players’ boycott statement was basically fair—at least in the local Minnesota media. That tone soon changed. It changed despite the fact, as Robby Soave has observed, this was a protest (from students of all races) alleging that authorities had denied due process rights to accused black males.

In the current national environment, in virtually any other context, this message –that young men of color had been mistreated by agents of the government who were investigating conduct that state law deemed to be criminal—would have been greeted with enthusiastic support from the mainstream media.

Yet (unsurprisingly, given the general media attitude regarding due process and campus sexual assault), the editorial and commentary response was overwhelmingly negative. This Sally Jenkins piece in the Washington Post is a representative sample; this Dave Zirin piece is a typically extreme manifestation of the attitude. In its editorial condemning the players who threatened to boycott, the Star-Tribune conceded that “there can be discussion over whether [preponderance of evidence is the correct standard and over the high level of secrecy involved in the disciplinary process at the University” and noted that there “has been pushback in other high-profile incidents across the country over the current system and the way standards are applied.”

In other words: the editors conceded that the due process concerns presented by the students had merit. After making the point, the editors nonetheless charged that, through their protest, the players threatened to “further damage the university’s reputation.” Is there any other context in which a left-of-center editorial page would advance such a claim about students advocating for other students’ civil liberties?

Beyond the choice of framing, both the Times (in a straight news story) and the Star-Tribune (in its op-ed) erroneously asserted that the University of Minnesota was required by “law”—even Obama administration officials (albeit very reluctantly, under prodding from Senators Lamar Alexander and James Lankford) have conceded that the Dear Colleague letter doesn’t carry the force of law. The Times quietly eliminated its error.

After the issue was pointed out on Twitter, the Times replaced, without acknowledgment, the claim that Minnesota had to use a lower standard of proof by law with the following passage: “Burdens of proof used in such investigations are frequently lower than the criminal justice system’s.” The false claim in the Star-Tribune editorial remains. The errors reflect the generally poor approach the media has featured in covering campus procedural issues.

The Minnesota football coach has said that his public support for the protest threatened his job. Given the current atmosphere on campus, he’s probably right.

How Governor Andrew Cuomo Is Weakening CUNY

I’ve worked at CUNY under four governors—George Pataki, Elliot Spitzer, David Paterson, and Andrew Cuomo. Pataki (and state Senate Republicans) didn’t allocate to the institution sufficient funding. But he was by far the best governor of the four for CUNY.

Pataki appointed a superbly-qualified chairman of the Board of Trustees, Benno Schmidt. He named other trustees—Jeffrey Wiesenfeld, Kay Pesile—who were both independent and committed to CUNY’s academic excellence. (And, despite opposition from status quo faculty, Pataki reappointed Wiesenfeld.) The board, in turn, appointed an excellent chancellor, Matthew Goldstein, whose policies helped to revitalize the institution. All the while, Pataki stood aside and allowed CUNY to flourish free from political meddling.

Neither Spitzer nor Paterson served long enough to leave much of a mark on CUNY—though both seemed to recognize the institution’s significant improvement in the Schmidt-Goldstein era and seemed disinclined to reverse the progress. Not so, however, Cuomo.

For his first term, Cuomo confined his CUNY policy to disinterest—though he distinguished himself as even less supportive of robust funding levels than Pataki or the GOP-led state Senate. But since winning re-election in 2014, he increasingly has targeted the institution. He offered a curious call for consolidating the CUNY and SUNY administrations, despite the radical differences between the two institutions. (For starters: CUNY schools are urban and non-residential; many SUNY schools are rural or exurban with on-campus residency requirements.)

As part of this effort, the Cuomo administration criticized CUNY’s decision to pay Goldstein as chancellor emeritus, which carried with it teaching and research expectations. (As the Times noted at the time, “By national standards, Dr. Goldstein’s compensation has always been moderate.”) And the governor brought to CUNY, which heretofore had a policy that was a model of fairness, his campaign to weaken due process protections for students accused of sexual assault.

In the meantime, Cuomo stacked the CUNY Board of Trustees with political cronies. Here’s a listing, from a recent New York Times summary: “[A] new chairman, William C. Thompson Jr., the former New York City comptroller, Fernando Ferrer, the former Bronx borough president; Robert F. Mujica, Mr. Cuomo’s budget director; Ken Sunshine, a public relations consultant; and Mayra Linares-Garcia, Mr. Cuomo’s former director of Latino affairs.” None have, to date, demonstrated any indication of independence from the governor.

Frustrated in his effort to consolidate CUNY and SUNY, the governor then took advantage of alleged financial misconduct by the former president of CCNY, Lisa Coico. The Cuomo-appointed BOT chairman, Thompson, publicly “requested” a university-wide audit by the state inspector general, who—contrary to normal practice—quickly issued an “interim” report. The report’s revelations—focusing on a tendency to hire outside counsel for sticky investigations (an approach that

The report’s revelations—focusing on a tendency to hire outside counsel for sticky investigations (an approach that has worked very well at CUNY) and purportedly excessive discretionary spending by college presidents—hardly seemed to be the type that would justify an “interim” report. Nonetheless, Albany responded with a statement containing a scarcely-concealed attack  on the upper-level CUNY administration.

Cuomo’s motives in targeting CUNY remain unclear. The Times quotes CUNY emeritus professor Kenneth Sherrill, who observed that Cuomo might want to distract attention from a scandal at SUNY-Polytechnic Institute. It’s also possible that CUNY has become caught in the battle between Cuomo and his chief rival in the New York Democratic Party, NYC mayor Bill DeBlasio. If so, CUNY is in deep trouble indeed, trapped between a governor who seems willing to use the institution as a political plaything and a mayor who’s an incompetent ideologue.

But, in the end, Cuomo’s motivation is irrelevant. An effective, independent administration at CUNY is critical given the ineffectiveness of the elected faculty leadership—especially the faculty union, the Professional Staff Congress, which has distinguished itself over the past 15 years for its opposition to every major effort to raise standards at CUNY.

Any vacuum caused by less independent trustees and administrators—the clear effect if not the intent of Cuomo’s policies—will only work to weaken education at CUNY overall.

The Title IX Mess—Will It Be Reformed?

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

College hearings on sexual misconduct are often a travesty of justice. Usually, there is no attorney for the accused, no cross-examination, no discovery, no note-taking, little time for the accused to prepare and often a form of double jeopardy (the accuser can appeal but the accused cannot). Individual universities can broaden the definition of offenses (at Yale “economic abuse” counts as sexual assault) and uninvolved third-party accusations can sometimes launch hearings.

Some comments on what should, and should not, occur:

The Fate of Obama-Era Guidance

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

Related: How the Feds Use Orwell to Apply Title IX

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

Given the Access Hollywood tape, it might well be politically impossible for a Trump administration to simply withdraw the 2011 and 2014 “guidance.” But another avenue for action exists, including the FIRE-orchestrated lawsuit filed by a former University of Virginia student and by Oklahoma Wesleyan University. The new administration could easily enter into settlement negotiations for the lawsuit and concede the inappropriateness of issuing new regulations on all colleges and universities outside the APA’s requirements.

If this doesn’t occur, Congress becomes all the more important. The two people to watch are Lamar Alexander and Oklahoma Republican James Lankford. The Oklahoma senator issued an encouraging statement the day after the election, noting that the Education Department had “used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes. It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”

Related: How Title IX Became a Policy Bully

Accusers’ rights organizations seem to have recognized that, at the very least, the anti-due process agenda of the current OCR might be discontinued in the next administration. And so, as the Chronicle recently reported, they’ve ratcheted up pressure on colleges to maintain the current unfair procedures that the Ali/Lhamon-led OCR helped to establish.

Yet even the most extreme of the activist groups—Know Your IX—has conceded that colleges are obliged to provide “fair” processes. (The group’s founders, Alexandra Brodksy and Dana Bolger, have defined “fair” in Orwellian terms, but they nonetheless use the language.)

Early in her tenure, Russlynn Ali made clear that the new OCR would welcome Title IX complaints from accusers angered at their college having returned not-guilty findings, or simply not rendering a guilty finding quickly enough. The new OCR could make clear that given the manifest unfairness of most college disciplinary systems on sexual assault matters, it would welcome complaints from accused students, to give the federal government a chance to counteract the improper pressure to keep disciplinary systems unfair. The resolution of the pending Title IX complaint against Brandeis—in a case that was the subject of the piercing opinion by Judge Saylor—could provide a template.

Along these lines, resolution agreements from OCR should restore earlier principles (from the Bush II administration) that colleges aren’t obligated to reinvestigate claims where a criminal complaint has been filed; and that colleges aren’t obligated to investigate allegations that occur off campus.

Distractions

Over the past five years, only a handful of politicians have paid any attention to the issue of campus fairness; as Christina Hoff Sommers presciently noted, “due process has no lobby.” Scores of GOP legislators and governors, on the other hand, rose up as one against OCR guidance regarding bathroom policies for transgender school kids.

For advocates of campus due process, then, the great fear is this: given Republican priorities, the new administration will focus its OCR reform agenda on eliminating protections for transgender public school students—a move that will receive fierce political resistance—and therefore will decide not to address the campus due process issue at all.

Related: The Feds Now Run a Bureaucracy That Regulates Sex

Any comment on a Trump-led OCR has to address what was avoided. While OCR under Obama was disastrous for due process, the crusade always had a surreal element to it. Obama, after all, was formerly a constitutional law professor, and also someone who was willing to stand up for campus civil liberties (albeit only in the free speech context). Even as his administration eroded due process rights for accused students, there was always the chance that a President with Obama’s beliefs would recognize he had gone too far.

No chance would have existed for such a course correction under Hillary Clinton, had she been elected. (Full disclosure: I am a Democrat who donated to, and voted for, Barack Obama in 2008 and 2012. My only federal political donations in 2016 went to Jason Kander, who narrowly lost in the Missouri Senate race.) To the extent that Clinton had any consistent beliefs, they revolved around a fierce connection to gender-based identity politics. And there was no doubt as to how these beliefs would have translated on campus.

Clinton’s campaign began with an official policy toward campus sexual assault—that all accused students who could not prove mistaken identity were guilty since all campus accusers had a “right to be believed.” Even Obama’s OCR, as extreme as its approach toward campus due process had been, never adopted such a policy. Clinton withdrew the line only after she was asked how it would apply to her husband’s accusers, but there seems little doubt that she would not have granted the same degree of skepticism for students accused of sexual assault on campus.

It also seems likely that a Clinton OCR—perhaps with Lhamon staying on for a second stint in charge of the agency—would have more aggressively targeted campus free speech. The University of Montana “blueprint” (imposed by OCR and the Justice Department) supposedly was abandoned after a public outcry. But its basic principles were quietly extended to the University of New Mexico and could have formed a national template under four years of Clinton.

In a Clinton presidency, Title IX would have been used as a sword against fairness and due process. If nothing else happened last Tuesday night, that outcome appears to have been avoided.

Yale Defends Its Star Chamber Hearings

The Obama administration, acting through the Office of Civil Rights, has made a terrible mess out of sexual misconduct hearings on our campuses, but it did one good thing without thinking much about it: it targeted one university—Yale—for regular reports on how it dealt in sexual assault hearings.

The reports, released by Deputy Provost Stephanie Spangler, are bare-boned and hardly meant to be informative, but they have included enough information to demonstrate the fundamental unfairness of Yale’s procedures and the witch hunt atmosphere that has permeated the campus. Perhaps for this reason, OCR has avoided instituting a reporting requirement like Yale’s on any other institution.

Recently, Yale’s dubious policies came under higher-than-usual scrutiny, thanks to a perceptive Wall Street Journal op-ed from Jennifer Braceras—who correctly noted that the accused enjoyed far more rights under the notorious Star Chamber than they do in Yale’s sexual assault disciplinary tribunals. Jack Montague, Braceras noted, discovered first-hand just how unfair Yale’s procedures could be.

He had no right to direct cross-examination, no right to have a lawyer fully participate in the process, and received a judgment from a “trained” panel that seemed predisposed to find guilt. He also was charged in seeming violation of Yale guidelines, which (as Spangler explained at the time) did not apply to cases like Montague’s, where the accuser declined to file a complaint.

Braceras’ op-ed generated a response, from Yale professor David Post, an aquatic ecologist who chairs the University-Wide Committee on Sexual Misconduct (UWC). Post deemed Braceras’ comments an “affront” to him, noted that many Yale cases end with no punishments, and gushed about “Yale’s multilayer process,” which “allows parties to submit and respond to evidence, engage legal counsel, submit questions for a hearing panel to ask the other party and file an appeal to the university’s highest levels. Each complaint is investigated by an outside fact-finder.”

According to Professor Post, “Yale’s process is honest, fair, transparent and respects privacy.”

First of all, here’s a statement on the Montague lawsuit, offered to the Hartford Courant, by a Yale public relations staffer: “Yale always respects the privacy and confidentiality of all students involved in a disciplinary process. Yale’s procedures for addressing allegations of sexual misconduct are thorough and fair. Allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student’s dean.

Throughout the process, all parties have advisers, which can be legal counsel, and they can appeal a decision.” Previous Yale statements also had stressed the fact that not all accused students are found guilty (citing the same statistics as Post), in following the outlines laid out by Judge Furman’s opinion in the Columbia case. Apparently, no one told Post that the Second Circuit had overruled Furman.
The remarkable similarities between the earlier Yale publicity statement and Post’s letter—which ostensibly contains his own words, and reflects his own thinking, not that of a Yale public relations officer—raises some questions about the professor’s “honest[y].”

As to the other qualities of Yale’s procedures: I’m sure that Montague—like Patrick Witt before him—was surprised to discover Yale’s commitment to respecting “privacy.” Indeed, after Montague left the team, Yale’s Women’s Center released a statement “speculat[ing]” that “it seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for.”

The claim of transparency also intrigues. This assertion was the major difference between Professor Post’s letter and the earlier statement from Yale’s p.r. office (which, wisely, made no mention of the concept). It’s not clear why Professor Post added the claim since Yale’s process is anything but transparent. It’s closed to the public. The university has refused to release the “training” all UWC members receive. And Yale makes no promise to share with the accused students all the evidence the purportedly independent “fact finder” uncovers.

As for the claim of Professor Post—and Yale’s spokesperson—that the university’s process is “fair”: even as last year’s protesters demanded a more “diverse” English fare, it seems that Orwell is alive and well on the New Haven campus.

The “Jackie” Interview in the UVA Fake Rape

In the suit against Rolling Stone by University of Virginia dean Nicole Eramo over the magazine’s false rape story, the trial rolls along, with the two sides offering a narrow band of arguments: according to Rolling Stone and former reporter Sabrina Rubin Erdely, our nation’s campuses are teeming with sexual assaults, beset by a “rape culture,” and the UVA administration was indifferent to the student victims in its midst. (Even the Office for Civil Rights has said so, Rolling Stone lawyers have argued.)

It is difficult, therefore, to have sympathy for either party in Eramo’s lawsuit. (Phi Kappa Psi’s lawsuit against Erdely is another matter.) But the Eramo lawsuit has been of extraordinary value in bringing to light the flawed process through which the Rolling Stone article was produced. First came the discovery material, including Erdely’s reporting notes. And now, Charlottesville TV station CBS-19 obtained a 150-minute recording of what seems to have been the first detailed interview between Erdely and accuser “Jackie.”

I posted brief audio excerpts of the choicest elements of that conversation. It occurred in a restaurant; some portions of the audio are of very poor quality.

Erdely comes across as closed-minded, having already decided on her thesis. (Her research notes showed that she began her project by interviewing the anti-due process fanatic Wendy Murphy and the discredited researcher David Lisak.) Jackie, meanwhile, comes across as even more ideologically extreme than Erdely—which is saying something—and not terribly bright. She discusses failing multiple courses during the conversation; how she remained enrolled at UVA is a mystery.

Effects on Lawsuits

The material on this tape would seem to help Rolling Stone in the Eramo lawsuit and badly hurt it in the Phi Kappa Psi lawsuit. Regarding Eramo: One of the dean’s libel claims comes from the article’s claim that she told Jackie that UVA didn’t aggressively report sexual assaults because the publicity would be harmful, since “nobody wants to send their daughter to the rape school.”

Eramo refused Erdely’s request for an interview. But the tape has Jackie claiming that Eramo gave her that feedback (and another campus activist told Erdely the same thing). Furthermore, the tape has Jackie portraying Eramo as corrupt—after saying she didn’t want to get Eramo “in trouble,” Jackie asserted that the actual number of people who reported being sexually assaulted to Eramo was “much higher” than Eramo has reported to her superiors—thereby suggesting that Eramo had violated federal law. Rolling Stone thus can (and, obviously, will) say that it had a seemingly credible source for Eramo’s “rape school” alleged statement.

At the same time, the tape should provide substantial ammunition for Phi Kappa Psi. Erdely made clear that she sees what happened (or in this case, didn’t happen) to Jackie as a “gang rape initiation ritual,” and therefore wanted the article to identify the fraternity. She added that she “want[ed] to get these guys.” Members of the fraternity, Erdely mused later on, personified the “banality of evil,” in that the non-attacker members of the frat were afraid to ask questions, lest they learn too much. Phi Kappa Psi, Erdely concluded, was a fraternity “that might have a culture of gang rape.”

After these quotes—in her own voice—it’s going to be very hard for Erdely to argue that her article didn’t directly target Phi Kappa Psi.  And since the article’s claims were false, that would seem to be very bad for Rolling Stone.

The Agenda

As Ashe Schow has noted, the tape showed that Erdely harbors a strong bias against fraternities. Both Erdely and Jackie also entertained an imagined view in which—as Jackie put it—“nobody wants to talk about” sexual assault on college campuses. (Of course, there are few issues that get talked about more on contemporary elite campuses.) Erdely, meanwhile, envisioned an elite campus culture in which “social capital is more important than people’s safety,” and therefore students were unwilling to help victims in their midst. Again, this seems to be an almost wholly imagined view.

They’re describing, of course, the same campus whose student leadership and voices of student opinion would remain committed to Jackie’s tale even after it had collapsed.

Jackie

The conversation gave a sense of Jackie’s extremist beliefs, her rather unappealing personality—and if Erdely had been at all open-minded, her penchant for tall tales.

She pressed Erdely not to name Phi Kappa Psi in the article, worried that the fraternity members would “hate” her as a result. But she also argued that leaving the identity of the fraternity a mystery would serve a broader purpose of stimulating a witch hunt atmosphere on campus.

If UVA administrators didn’t know which fraternity was the site of the seemingly horrific attack, Jackie said that she “would hope to see” full-scale investigations of all fraternities. Innocent fraternities, Jackie breezily suggested, should welcome such an inquiry, since, after all, “the ones that have nothing to hide won’t be upset.”

Since most of Jackie’s ideas seem to have emanated from what Erdely terms her “club” of campus activists, it would be interesting to know how many of Jackie’s fellow accusers’ rights activists shared this extraordinary conception of fairness. Jackie also saw an extraordinarily dangerous campus she suggested that one in three UVA female students are sexual assault victims.

In justifying BuzzFeed’s decision not to identify Jackie, Tyler Kingkade bizarrely suggests that she might actually be a victim. He incorrectly asserts that “none of the publicly available court documents . . . use[s] Jackie’s full name.” Kingkade then obtains a quote from the Columbia Journalism School’s Steve Coll, co-author of the autopsy that avoided asking hard questions about why the magazine had so badly failed. “She never solicited Rolling Stone to be written about,” Coll said.

The 150-minute conversation, however, showed a figure eager, even joyous, at advancing her narrative. Jackie actively participated in the interview—she seemed to very, very much enjoy talking about herself and her feelings. She suggested multiple other witnesses. She talked about her myriad activities advancing her agenda on campus. And she told Erdely about her eagerness to create “bad publicity” against UVA.

Jackie also came across as someone with significant mental health issues. (Of course, since we now know she’s a liar, her description of her mental health might also be a lie.) She told Erdely that she’d seen at least four different mental health professionals—when she was 14 (to address her poor relationship with her father), as a senior in high school (parental issues, again), at the urging of her mother after the purported campus assault, and at the urging of a friend after the purported campus assault. The latter ended because the counselor didn’t adopt Jackie’s preferred approach to the session: “Can we talk about what I want to talk about?”

Finally, there were red flags in the interview that a less agenda-driven reporter might have picked up. For instance, Jackie (at considerable length) discussed her mother’s time in college, when she commuted 30 minutes each way as a day student at Brown. But the mother didn’t go to Brown (as Erdely later discovered).

Jackie said that after the alleged assault, she “didn’t get out of bed for weeks.” She later claimed that she left campus two weeks before the end of the semester in her first-year fall term. Yet Erdely never asked how she could have stayed enrolled if she never attended class, and wasn’t even on campus.

She twice informed Erdely that even one of her fellow activists told her “you are insane, you watch too many crime shows.” (Various elements of her story borrowed from Law and Order.)

And in a long discussion about whether the article would name Phi Kappa Psi, Jackie urged anonymity of the frat on grounds that she was scared that fraternity members would learn she had claimed she was raped in their house. Yet at other points in the conversation, she spoke about how lots of people on campus already knew about her story, and Erdely knew that she had spoken about the event at a “victims’ rights” rally.

Erdely, the non-skeptical reporter, did not probe the inconstancies. Indeed, she appears to have believed the inconsistencies made Jackie more credible.

Feds Lurch Toward Due Process in a Campus Sex Case

In a first for the Obama-era Office for Civil Rights, the Education Department’s OCR found in favor of an accused student who filed a Title IX complaint against Wesley College. At the least, after five years, we’ve finally found a case whose facts were so outrageous that even an OCR notoriously indifferent to due process couldn’t justify them.

The letter has received extensive coverage; the facts of the case are tawdry. At a fraternity in the Delaware school, two students had sex. Unbeknownst to the female student, the intercourse was streamed and witnessed (allegedly) by two other members of the fraternity. Two other students found out (from another fraternity member who had heard about the affair), went to the college, and an “investigation” ensued. Within seven days, all three of the accused students—the male fraternity member who had sex, and the two who allegedly watched—had been expelled.

The college violated multiple procedures in its handling of the case. It didn’t give the accused student a clear sense of the charges against him. It didn’t tell the student that the hearing (which would recommend his expulsion) actually was a hearing—the student thought it was a preliminary conference, so he had no witnesses to testify on his behalf. The college also gave the student an interim punishment—suspension—before the hearing, even though at that point of the “investigation,” the student had spoken to no one at the college about his side of the story.

Although the OCR letter doesn’t take a position on the matter, it suggests that the case  should never have been brought against the accused student at all. Wesley’s policy suggests that charges shouldn’t be brought against a student in a case without an accuser. In this instance, the accuser told Wesley administrators that though she hadn’t consented to the streaming of the intercourse, she didn’t believe the accused student had any role in the planning or execution of the event. Yet Wesley went forward with charges anyway.

The entire investigation and adjudication took a week. OCR investigators found that in 10 or the 12 most recent Title IX cases at Wesley, the matter had been resolved “in a matter of days.”

Though Wesley was the subject of the Title IX complaint, the real target could have been OCR itself. As FIRE’s Will Creeley has noted, “Given the many similarities between the procedural failures found by OCR here and those alleged by accused students in lawsuit after lawsuit over the past few years, chances are that Wesley College’s failings are far from unique.”

For instance, in its discussion of the threshold for imposing interim punishments, the resolution letter noted that “while a school must assess whether the presence of an accused student threatens the safety of individuals within the school community, a sufficient level of inquiry–that is not here evident–must be undertaken in determining the appropriateness of interim suspensions.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should consider the rights of accused students when imposing interim punishments. Will OCR now retreat from its enthusiastically championing of the interim punishment approach for all students accused of sexual assault?

Similarly, the resolution letter noted that “OCR has concerns, however, that the College’s expedited investigation of complaints of sexual harassment and sexual violence may have compromised the equity of such investigations.” Yet nothing in OCR guidance over the past five years would have suggested that colleges should refrain from lightning-fast “investigations” and adjudications—indeed, OCR has been relentless in its pressure that colleges should speed things up. (Recall the Peter Yu case at Vassar as a particularly egregious example of how lightning inquiries frustrate pursuit of the truth.) Will OCR now abandon its pressure tactics on speed of inquiries, and encourage colleges to choose timeframes that allow students accused of sexual assault—who are, effectively, required to prove their innocence—enough time to prepare their case?

Finally, the letter is a striking testament to OCR’s hypocrisy. The only case specifically investigated involved treatment so unfair to the accused student that even OCR said the judgment had to be invalidated. Yet the general recommendations in the letter veered in the direction of changing procedures to increase the chances of guilty findings (more “training,” for instance, to remove a lack of “clarity” regarding the preponderance of evidence standard) or ensuring that more cases are adjudicated (fewer employees designated as eligible for confidential reporting). OCR expressly criticized the existing policy (which Wesley ignored in the case that prompted the complaint) of not having cases go forward without an accuser.

So, in short, while this case will need to be re-tried to allow the accused student to defend himself, the actual outcome of this letter is that more accused students at Wesley likely will be subjected to unfair procedures down the road.

Brown U. Messes Up Sex Assault Case, Accused Prevails

In campus sexual assault hearings, due process for accused students is rare, because of pressure from feminists and campus activists, administrators’ diffidence, and the Obama administration’s 2011 “Dear Colleague” letter that minimized protections for the accused.

Getting these cases into court for a due process trial is even rarer, but now the first such trial since the issuance of the “Dear Colleague” letter has ended with a victory for an accused Brown University student. Chief U.S. District Court Judge William Smith—as he had strongly hinted during oral arguments in mid-August—vacated Brown’s disciplinary judgment, arguing Brown had violated its own procedures, thus producing an unfair result.

Related: No Due Process, Thanks—This Is a Campus

The case involved student attempts to influence the judge, biased training of panelists in Brown’s sexual assault cases and the university’s extraordinary belief that flattery and flowers qualify as a manipulative part of sexual assault.

The case arose out of a fall 2014 incident where two members of the Brown debate team had oral sex after purportedly meeting (in a small room on campus) to watch a very late-night movie. In texts that flew back and forth between the two, the male student made clear his desire for no-strings-attached sex; the female was ambivalent, but signaled consent in some of her texts, while in others stating she wasn’t eager for sex. A few weeks later, the male student urged the female to put in a good word for him with a friend, with whom he wanted to have sex. These were not, to put it mildly, overly appealing characters.

Related: Don’t Bother with Due Process

In his 84-page ruling (which you can read here, and which both Robby Soave and Ashe Schow have also summarized), Smith identified three areas of misconduct by Brown (definition of consent, conduct of investigator, conduct of one of the panelists). Some of these issues were peculiar, related to the specific facts of this case, in which Brown had changed its policy between the time of the incident and the time the accuser decided to file her charges.

The decision has three areas of relevance, however, for matters beyond Brown. The first involves the “training” that the Office for Civil Rights (OCR) mandates all schools to provide to panelists in sexual assault cases. The equivalent in the criminal justice process would be if all jurors in rape trials (and only in rape trials) had to get training material—provided only by the prosecutors, designed to increase the chances of a guilty finding.

Anything Proves Sexual Assault

The inevitable result of this biased “training” manifested itself in the Brown case. After the incident, the accuser told a roommate what a great time she had with the student she’d eventually accuse; post-incident text messages sent by the accuser likewise indicated her having consented to sex. But one of the panelists, Besenia Rodriguez, said she didn’t consider the post-incident texts or conversations because her interpretation of Brown’s “training” suggested that sexual assault survivors behave in “counter-intuitive” ways. Therefore, she reasoned, “it was beyond my degree of expertise to assess [the accuser]’s post-encounter conduct . . . because of a possibility that it was a response to trauma.”

Rodriguez’s contention that her university-provided training shows that essentially any behavior—intuitive or counterintuitive—proves sexual assault “clearly comes close to the line” of arbitrary and capricious conduct, Smith noted. Yet the training Rodriguez received, and the mindset she reflects appears to be commonplace in campus sexual assault matters.

The case’s second key feature involves the pressure campaign—in the form of non-public e-mails—organized by a Brown student named Alex Volpicello. He even prepared a template—and dozens of students followed his lead and e-mailed Smith to urge him to uphold Brown’s handling of the case.

Volpicello’s ham-handed initiative predictably backfired with Smith. But the flurry of e-mails provided Smith with a glimpse of the witch-hunt atmosphere that exists on today’s campuses. He was deeply troubled, noting that “the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome.

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.”

Alas, the anti-due-process activists have shown no interest in education. Indeed, Volpicello issued a statement denouncing Smith’s ruling as indifferent to “the emotional trauma of the survivor” and insulting to “the intelligence and civic awareness of us as Brown students.” “Where is the justice?” wailed Volpicello. Where, indeed.

Third, despite the victory for the accused student, Smith’s ruling was very limited. He appeared deeply reluctant to involve himself in a campus disciplinary matter and explicitly said Brown could re-try the accused student—even as he spent page after page detailing Brown’s dubious conduct in this case. (And this comes after he spent page after page detailing Brown’s dubious conduct in another sexual assault case.) Nor did he pull any punches about the absurdity of Brown’s current policy, which defines sexual assault as including such behavior as a male student giving a female student flowers, or flattering her, in hopes of getting her to agree to sex. As Smith noted, Brown defines such manipulative behavior as sexual assault.

As FIRE’s Samantha Harris perceptively noted, “Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims . . . Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions . . . When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem.”

In his opinion, Smith contended that he could strike down only a college disciplinary system that “tends to injustice.” If a system whose personnel regularly violate students’ rights, while defining the giving of flowers before sex as a sexual assault, and amidst a witch-hunt atmosphere doesn’t tend to injustice, what type of system possibly could?

Rolling Stone Goes to Trial

A lawsuit stemming from the most famous of the modern rape hoaxes—the Rolling Stone account of a brutal but fictional attack on “Jackie” at a University of Virginia fraternity—gained ground last week.  A federal judge in Virginia ruled that UVA administrator Nicole Eramo’s lawsuit against Rolling Stone should go to trial.

The lawsuit has been of enormous value in producing documents that exposed both the closed-minded incompetence of Rolling Stone and the poisonous, guilt-presuming campus atmosphere at UVA. However, unlike the lawsuit filed by the Phi Kappa Psi fraternity (reporter Sabrina Rubin Erdely’s chief target), an Eramo victory would send, at best, a mixed message.

Judge Glen Conrad’s ruling allowed Eramo’s suit to proceed on multiple grounds. The dean’s strongest claim involves Rolling Stone’s manipulation of a mundane photo of her, to give her wild, almost devil-like eyes, with her back turned to victims demanding justice. Even the Rolling Stone fact-checker, who independently concluded that the fantasist “Jackie” was telling the truth, worried that the photo was too harsh.

Conrad also greenlighted a count involving Erdely’s claim that Eramo had discouraged Jackie from reporting her non-existent attack because she worried that UVA would develop a reputation as a “rape school.” It seems very unlikely Eramo—who comes across in the depositions as a true believer about a campus rape panic—ever uttered such a remark. But Erdely had two sources suggesting otherwise (Jackie and a fellow campus activist), and UVA refused a request to let Eramo be interviewed. Perhaps that will be enough for Rolling Stone to prevail.

Other aspects of Eramo’s lawsuit, however, are deeply troubling. The UVA Dean gathered support from a variety of campus activists—Emily Renda, Sara Surface, and Alex Pinkleton—with a de facto goal of ensuring that the discrediting of the Rolling Stone article won’t discredit their joint cause of fueling a moral panic about the issue of campus sexual assault.

In depositions for the lawsuit, the activists framed Erdely as an irresponsible journalist (which is not hard to do)—but not because she was a closed-minded ideologue who had reached her conclusions before she did any investigation. Rather, the trio of activists criticized herafter the fact—for focusing on Jackie and Eramo, and not on what they see as the epidemic of victims on campus, and the indifference to them of administrators other than Eramo. So in this view, Eramo is a victim of Rolling Stone, but the magazine’s basic thesis was correct.

One Erdely source, Alex Pinkleton, summarized the view of the activists that people must not let Jackie’s lies get in the way of the preferred narrative. “We need to remember,” said she, “that the majority of survivors who come forward are telling the truth.” How people who did not tell the truth about being sexually assaulted could still be considered “survivors” Pinkleton has never explained.

It would not have been difficult for Rolling Stone to have discredited these activists’ depositions—after all, each of them vouched for the veracity of Jackie’s tale in their interviews with Erdely, and each seemed to be eager for the Jackie story to be told at the time. But Rolling Stone ultimately shied away from portraying these figures as the non-credible witnesses they are. The magazine probably had no choice—because Erdely had relied so heavily on them for her article. Moreover, Conrad’s ruling cited the depositions of these non-credible activists as proof that three individuals “advised Erdely that her portrayal of Eramo was inaccurate.”

Perhaps the oddest section of Conrad’s ruling dealt with Rolling Stone’s December 5, 2014 Editor’s Note, which disavowed the story. Eramo claims that because Rolling Stone only said it no longer believed Jackie, and because the magazine did not remove the allegedly defamatory statements about the dean, the disavowal constituted a republication of the attacks on Eramo. This interpretation is bizarre. Jackie was the story.

The repudiation of her truthfulness repudiated the entire article. I cannot imagine how anyone—except, perhaps, the activists who are now riding to Eramo’s defense—could have interpreted the disavowal as Rolling Stone expressing full confidence in everything else Erdely wrote about UVA.

In her deposition, Erdely expressed regret—not to the fraternity members she falsely accused. (She has never apologized to them.) Rather, she said that she wished that instead of orienting her article around Jackie, she had chosen another accuser (“Stacy”) to serve as the article’s spine. The rest of the article would have remained unchanged—and since Stacy’s story was (it seems) not self-evidently false, Rolling Stone would have needed to make no retraction.

I suspect if Erdely had followed that course, none of the activists currently defending Eramo would be on the UVA dean’s side. Ironically, despite the lawsuit, the opinions of campus sexual assault held by Erdely, Eramo, and the UVA activists seem to be almost identical.

The Alarming Decline of U.S. Political History

One of the year’s most important essays on higher education appeared earlier this week in The New York Times op-ed page. Historians Fredrick Logevall and Kenneth Osgood wrote of the decline of U.S. political history. “The public’s love for political stories,” they correctly noted, “belies a crisis in the profession. American political history as a field of study has cratered. Fewer scholars build careers on studying the political process, in part because few universities make space for them. Fewer courses are available, and fewer students are exposed to it. What was once a central part of the historical profession, a vital part of this country’s continuing democratic discussion, is disappearing.”

Related: A Big Campus Trend–Ignorance of U.S. History

As someone who almost lost his job in part because (as a former colleague put it in a then-secret letter), my scholarship took the “old-fashioned” approach of focusing on “figures in power,” I obviously share the concerns raised by Logevall and Osgood. I’ve made similar points about the field at Minding the Campus and in Congressional testimony.

The two historians also offered a solution: “What is needed, to begin with, is for university administrators to identify political history as a priority, for students and families to lobby their schools, for benefactors to endow professorships and graduate fellowships and for lawmakers and school boards to enact policies that bolster its teaching—and without politicizing the enterprise.” They’re absolutely right, of course, that history departments won’t solve the problem (though I suspect the reason is less “tight budgets” than the fact that the departments, through their hiring policies, created the problem in the first place).

I’m dubious that administrators will do anything about the issue; only a reckless administrator takes on faculty on personnel matters when faculty has strong ideological objections. And based on what we saw from student protests in 2015-2016, restoring U.S. political history seems unlikely to be a central concern (despite the fact that political, and diplomatic, history classes tend to be very popular with students). I agree that state legislatures are fully within their rights to bolster the teaching of political history, especially since—as at schools like CUNY—state policies require public school history teachers to get M.A. degrees, on the theory that this knowledge will train the students to be better teachers. If history departments don’t hire specialists in the areas that states need to have taught, why should states continue to prop up these departments through the tuition dollars from M.A. students? Trustees also should play a critical role. They can and should be far more involved in ensuring pedagogical diversity in key departments, including (and perhaps especially) history.

Related: Big History Kicks American History to the Back of the Class

The op-ed has (appropriately) generated lots of positive responses. Academic criticism has come from two sources—one of which is correct but not germane to the point Logevall and Osgood raise, and one of which unintentionally proves their point.

The first noted that good work in political history sometimes comes from people outside of history departments. True. To take some examples from my experience: whenever I teach an M.A. or Ph.D. class in political (or constitutional) history, I assign at least one book by Kevin McMahon, a Trinity political scientist who’s written on FDR and Nixon. The next time I teach my undergraduate course in recent political history, I’ll use this article on the state marriage equality debates from Anthony Kreis, currently on the faculty of Chicago-Kent Law School. (Kreis’ work is also a reminder to historians that if we don’t write about recent events for which lots of sources are available, we cede the topic to non-historians.) And Robert Mann of LSU, who holds chairs in journalism and mass communication, is the author of one of the two or three finest histories of the Senate.

The fact that some academic non-historians write good political history, however, isn’t a reason why history departments shouldn’t hire specialists in U.S. political history. Imagine the reaction if (say) political science departments started not hiring specialists in race or gender in U.S. affairs, because those topics are already extensively covered in history departments.

Related: The Campus Assault on American History

Critical reaction was more troubling. Here was the New School’s Claire Potter (a 1990 Ph.D. whose sole published monograph appears to be War on Crime: Bandits, G-Men and the Politics of Mass Culture), tweeting to six other historians: “According to @nytimes we don’t exist.” It’s not clear to me why—even if Potter is correct that all seven of these people were hired in U.S. political history—the existence of seven U.S. political historians among the nation’s 7000 universities would undercut the Logevall/Osgood thesis. The reaction of Potter and her correspondents, however, seemed to reflect a general argument that Logevall and Osgood have misunderstood the nature of the field—overlooking what once was called the “new” political history, or a “re-visioned” political history, which sees the field as more attuned to themes in social history, or urban history, or elements of identity politics.

Some of this history, of course, is excellent—such as the work of Tom Sugrue (who unsurprisingly dismissed the op-ed) or Nancy Cott. But, as an approach, the “new” political history envisions a narrowed, not broadened, field—one in which it’s difficult to fit in most elements of congressional or even presidential history, or institutional histories of the government, or public policy histories that don’t correspond to identity politics or urban themes, or many types of political biographies, or the history of campaigns and elections. “The most interesting scholars blend the older fields,” as Potter euphemistically put it.

I suspect, for instance, that someone like Potter would not be pleased if gender history as a field generated few jobs; and that a significant portion of the diminished tenured or tenure-track positions in the field had gone to specialists in biographies of female members of Congress, with a heavy focus on their committee work. Such studies could be considered gender history. But they’d obviously represent only a small segment of the field.

It’s good to see Logevall and Osgood speaking out, and I hope their op-ed makes a difference.

More on the Sex Panic at Yale

The bizarre procedures of Yale’s sprawling sexual assault bureaucracy may well be the worst in the nation. We have come to realize this because Yale is the only university to publicly document all campus allegations of sexual assault, the result of a 2012 agreement with the Obama administration. Reports issued by Deputy Provost Stephanie Spangler don’t provide much detail, but with each new report, we see more clearly a campus environment characterized more by witch hunts than a pursuit of justice.

Consider this item: “An administrator informed a Title IX Coordinator that a Yale College student reported that another YC student made unwanted advances.” On the basis of this third-hand allegation, a current Yale student is being investigated.

The most recent Spangler Report, just published, says 20 Yale undergraduates were accused of sexual assault in the first six months of 2016. Twenty-six undergraduates filed sexual assault complaints. Assuming all were female (the source of around 99 percent of campus complaints), it would mean an annual violent crime rate for Yale undergraduate women of 1.9 percent, without taking into account any attempted murder or felony assault claims. That would be just under the annual violent crime rate for the city FBI stats deem the most dangerous in the country, Detroit.

Yet Spangler, it seems, believes her campus is actually far more dangerous for undergraduate females than Detroit. “We know,” she writes, “from both national statistics and our own participation in the 2015 AAU Sexual Climate Survey that this number represents only a fraction of the instances of sexual misconduct at Yale.” Actually, we “know” no such thing—as my colleague Stuart Taylor has pointed out, the AAU survey appears to have dramatically oversampled female students who reported a sexual assault to their school.

Here are some revelations from previous Spangler reports:

  • There is an increasing pattern of Yale’s Title IX office filings complaints on their own, without a formal complaint by the alleged victim, and odd investigations based on anonymous complaints—and sometimes with anonymous targets
  • The “resolution” of a complaint against a professor was reported, with a chair to “monitor” him, even though the professor has never officially been informed of the complaint
  • A student was punished though even Yale’s due process-unfriendly system had found not culpable for the allegations against him
  • Students have been charged under a vague standard that included “emotional or economic abuse” by “roommates”
  • Yale has redefined “sexual assault,” attributing to the term “broad ranges of behavior” that neither the criminal law nor common cultural understanding would define as sexual assault. As a result, no one can really be certain about what constitutes “sexual assault” at Yale.

Limiting Information

The Spangler reports always have seemed designed more to stimulate a sense of panic on campus than to actually convey information. The reports have tended to provide minimal amounts of information—ostensibly for privacy reasons, though Yale could easily provide more detail than it does and still ensure anonymity.

The only time Yale provided more information came in response to criticism from the accusers’ rights movement and its media allies. A 2013 biannual report had revealed that while several students had been found guilty of “sexual assault,” Yale hadn’t expelled any of them. Showing the university’s extraordinary sensitivity to criticism for not being tough enough on campus rape (just the type of sensitivity that attracted the notice of the Second Circuit, when it reinstated a Title IX lawsuit filed by an accused student at Columbia), Yale rushed out with a clarifying statement, as well as a document describing a host of conduct that it considered sexual assault but virtually no one else would. The implication—the students found guilty of “sexual assault” really had committed no such offense.

But while Yale is worried about not looking tough enough on sexual assault, it doesn’t seem to worry about not providing information that might cast doubt on the suggestions that the university is experiencing an unprecedented crime wave. Beginning this August, Spangler has revised her report to exclude details for cases that don’t move into the investigation phase. Instead, the report provides only statistical tables with the filings, so Yale can still list these incidents as campus sexual assault claims, thereby heightening the sense of panic. Spangler argues that Yale has taken this course because “those categories contain complaints in which no further action was taken,” and therefore “the descriptions provide little, if any, additional information.”

But this isn’t so. In fact, the descriptions of these cases were quite revealing. The now-suppressed data showed that these allegations often involved second-hand claims, in which a third party reported that a student whose identity he or she didn’t know was allegedly sexually assaulted another student whose identity the reporter didn’t know. That type of information demonstrated a seemingly panicked student body—and the absurdities of the university’s excessively broad definition of sexual assault. No wonder Spangler removed it.

The Numbers Lie

For Spangler and Yale, if the choice is between its own data (which is itself inflated because of how the university defines “sexual assault”) and dubious stats that reinforce campus beliefs, dubious stats will prevail. And so, Spangler reveals, a campus already frantic in its response to sexual assault has undertaken or will undertake “not only dozens of school and department based town hall meetings, but also workshops, curricular re-examination and design, the creation of local climate committees, the training of peer liaisons, and the expansion of bystander intervention programming to include features relevant to the graduate and professional student experience.”

The Incidents

Despite the high number in Spangler’s executive summary (26 female undergraduates filing sexual assault allegations in the first six months of 2016), only four of those cases made it to the UWC, Yale’s adjudication panel. And of those four, two accusers “withdrew” their allegations, for unspecified reasons. A third case remains pending. The fourth student was tried and unsurprisingly found guilty.

In contrast to recent patterns, the accuser—rather than a Yale Title IX officer—filed all four of these complaints. Though the previous version of the Spangler Report have claimed that the Title IX coordinator will take independent action “only in extremely rare cases, where there is a serious risk to the safety of individuals or the community, will the University take independent action,” that clause does not appear in the most recent Spangler report. Spangler provides no explanation for the revision.

A cynical person might assume that the excision was caused by Jack Montague’s lawsuit, since the complaint against the former Yale basketball captain was filed not by his accuser but by a Title IX officer, even though under no conceivable interpretation of the facts associated with his case did Montague pose a “serious risk to the safety of individuals or the community.” Montague’s expulsion is mentioned in the current report (as an update to cases first referenced in the fall 2015 report, which had contained the “extremely rare” language); though he isn’t identified, the filing of the complaint by the Title IX officer, and his expulsion, are the giveaways.

Consider this item, which seemingly illustrates a chilled classroom environment: “A faculty member reported that a YC student made inappropriate comments in a classroom. A Title IX Coordinator investigated and determined that the conduct did not constitute sexual misconduct and referred the matter to other campus officials for further action.” Since the student—who was nonetheless subjected to an investigation for doing nothing wrong—wasn’t even charged, why was he referred to “other campus officials for further action”? What was this “further action”? Spangler doesn’t say.

Finally, the report has two separate instances in which graduate students made allegations of “improper comments” against two professors. But both times, the students didn’t file charges. It didn’t matter: even though without the charges there was no investigation to determine the truth, in both instances, Spangler reports that the Title IX officer and relevant department chair “will monitor the [professor’s] interactions with students.”

Another reminder that the Yale faculty’s decision to remain largely silent about the assault on their students’ rights will ultimately threaten their own rights as well.

Why Colleges Don’t Have Fair Hearings on Sexual Assault

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse.

Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Related: Another Unbalanced View of Campus Sex Hearings

KEY POINTS

  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

Related: What The Rolling Stone Affidavits Show

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds. The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance. Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules. In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”

Related: Georgetown’s Survey Stokes the Rape Panic

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers. Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt even when faced with non-credible rape allegations.

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

Related: Problems in the Stanford Sexual Assault Case

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.

Related: How the Feds Use Orwell to Apply Title IX

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.

Related: Campus Surveys Inflate Rape Statistics

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal. The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy. That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement. The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”

Related: Suing the Office for Civil Rights

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.” In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).

Related: Yale’s Case against Montague Looks Shaky

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged. There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”

Witt was the first of many accused students victimized by Yale’s new policies. For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.

Related: Accused, Expelled, and Smeared as a Rapist—at Yale

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.” Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity. On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.

Related: Railroading the Innocent in Cincinnati

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.” Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat. Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, disgendered, able-bodied—to silence our peers.” The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart. She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.

Related: How Title IX Became a Policy Bully

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.

Related: Why ‘Yes Means Yes’ Rules Can’t Work

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.” ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”

Related: Ten Campus Rapes—Or Were They?

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview,Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.” Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings. The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one. By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school. Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging. The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.” A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.” Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”]Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.” In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities. As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined. It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.

Conclusion

Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

(Reprinted with permission from the Heritage Foundation)