Sex Smears and the Rule of Law at Yale

The university has tarnished a student's reputation, and its own

The case of former Yale quarterback Patrick Witt provides additional evidence, as if more were needed, that our leading colleges and universities have lost their way.

Controversy erupted on Jan. 26, when the New York Times tarnished the reputation of Yale's star football player. According to reporter Richard Pérez-Peña, Mr. Witt, a finalist for a prestigious Rhodes Scholarship, did not withdraw from the scholarship competition in November because, as he claimed at the time, he preferred to lead his team against Harvard in "The Game" instead of flying to Atlanta for his scheduled Rhodes interview. Rather, according to Mr. Pérez-Peña, the Rhodes committee, having "learned through unofficial channels that a fellow student had accused Witt of sexual assault," suspended his candidacy until such time as Yale provided a letter re-endorsing it.

Mr. Witt has denied the charge, and the Times story has been harshly criticized. The Times reported the existence of a confidential accusation of sexual assault despite not knowing the name of the accuser or the content of the complaint. It relied on a half-dozen anonymous sources, all of whom were violating institutional confidentiality policies. And it highlighted a couple of minor infractions by Mr. Witt earlier in his college years, slyly suggesting that he had a propensity for lawbreaking.

The complaint lodged against Mr. Witt was part of a new system for dealing with sexual-assault accusations at Yale. The school put the system in place at least partly in response to an investigation by the Department of Education stemming from allegations in early 2011 that Yale maintains a campus atmosphere hostile to women. Under the new system, the Times reported, Mr. Witt's accuser chose to file an informal complaint, which does not involve a full investigation or a finding of guilt or innocence.

But the Times and many others who have pounced on a murky tale about a star athlete seem oblivious to the larger story. That is the erosion of due process at Yale and throughout American higher education, and the alliance of government policy and academic dogma that fuels it.

On April 4, 2011, Assistant Secretary Russlyn Ali, who heads the Department of Education's Office for Civil Rights (OCR), sent a 19-page "Dear Colleague" letter to colleges and universities across the country. The letter ostensibly was meant to clarify the schools' obligations under Title IX, the 1972 law that prohibits discrimination on the basis of sex at educational institutions receiving federal funding. Schools that fail to comply with OCR directives risk the loss of government dollars. For top research institutions that amounts to hundreds of millions per year.

Garbed in the rhetoric of equality, with dubious data about the incidence of sexual assault on campus and misstatements about the law concerning sexual-misconduct complaints, the OCR letter tells colleges and universities precisely what they must do to bring their campus grievance procedures in compliance with Department of Education requirements.

Such proceedings may involve allegations of rape, a crime for which a defendant in the criminal-justice system can be sentenced to a decade or more in prison. Despite the high stakes, the OCR insisted that universities may not use a "beyond a reasonable doubt" standard, characteristic of the criminal law, or even the intermediate standard of "clear and convincing evidence." They must instead adopt the lowest of standards, or in the OCR's words, "a preponderance of the evidence" (which translates as more likely than not to be guilty).

In addition, the OCR letter "strongly discourages" cross-examination of the accuser. The OCR recommends that schools offer an appeals process for the accused. But if they do so, it requires that the complainant too be allowed an appeal. This flies in the face of the notion, deeply rooted in liberal Western jurisprudence, that subjecting the accused to a second trial for the same offense violates fundamental fairness.

It is outrageous but not surprising that little protest has been heard from faculty around the country. Some have succumbed to the poorly documented contention that campuses are home to a plague of sexual assault. Some are spellbound by the extravagant claim championed more than two decades ago by University of Michigan law professor Catharine MacKinnon that America is a "male supremacist society" in which women are rarely capable of giving meaningful consent to sex.

Rather than call it an "informal process," it would be better to characterize the system to which Patrick Witt was subjected by Yale's "University-Wide Committee on Sexual Misconduct" as undue process. Yale's promise of confidentiality to Mr. Witt turned out to be worthless. Yale also oversaw a grievance procedure concerning the serious accusation of sexual assault that nevertheless formally excluded a full investigation (which, according to Mr. Witt, he requested). So Yale left the charge against him hanging in the air in a university environment in which students, faculty and administrators casually equate accusations of wrongdoing with findings of guilt.

The Patrick Witt case, which is not atypical, reflects more than the decline of due process on campus. It also exhibits a failure of liberal education. At its best, university education has deteriorated into little more than random forays into the sciences, social sciences and humanities. But traditionally, and for good reason in a democracy, liberal education at its heart involved instruction in the principles of freedom.

If Yale and other institutions across the country were fulfilling their promise to educate students, then their faculties would teach that riding roughshod over due process shows ignorance of or contempt for the rule of law. Professors would be teaching that the presumption of innocence is rooted in a commitment to treating individuals as ends in themselves and not as a means to advancing some social goal or another, even if that goal is given the name of equality or justice. And students would be learning that our established and legitimate justice system does not presume guilt, because to do so is to fail to appreciate the limits of human knowledge and the propensity of those who wield power to abuse it.

The need to restore due process on campus—and in the directives of the federal government—is urgent.

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More Orwellian Justice at Yale--This Time Against a Professor

Believe it or not, there is at least one person on the Yale campus who has received less due process than Patrick Witt, the former college quarterback and Rhodes scholarship applicant whose reputation has been effectively destroyed by Yale and the New York Times.

That information came last Tuesday in an e-mail from Yale president Richard Levin celebrating the "comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions" produced by Deputy Provost Stephanie Spangler. As already noted, the Spangler Report explained the Orwellian procedures under which Patrick Witt was investigated or, rather, not investigated. Most of the report described the undergraduate students who, like Witt, had been subjected to the "informal complaint" procedure, in which limited or no investigation occurs and in which the accuser retains all but total control of the process.

One of the Spangler cases, however, involved a complaint by a female professor against a male colleague. Here is the report's description of the procedure that Yale employed: "A faculty member sought resolution of an informal complaint alleging that a male faculty member had sexually harassed her. The complainant requested confidentiality. The Chair of the UWC [University-Wide Committee on Sexual Misconduct] met with the complainant and her department chair and they identified measures to support and protect the complainant and monitor the respondent."

According to Spangler, then, after a complaint was lodged against a Yale professor, a meeting to discuss the matter occurred between university administrators, the accusing professor, and both professors' department chair. But the accused professor was never informed of the existence of the complaint, much less given a chance to defend himself. As a result, somewhere on the Yale campus today, a department chair and members of the administration have set up "measures" to "monitor" an unknowing member of the Yale faculty. Big Brother comes to New Haven.

In his Wall Street Journal article, Peter Berkowitz commented on a central irony of cases like Witt's--that academics, who by tradition have strongly defended due process, too often have remained silent to the erosion of civil liberties on today's campuses. As Berkowitz observed, "It is outrageous but not surprising that little protest has been heard from faculty around the country. Some have succumbed to the poorly documented contention that campuses are home to a plague of sexual assault. Some are spellbound by the extravagant claim championed more than two decades ago by University of Michigan law professor Catharine MacKinnon that America is a 'male supremacist society' in which women are rarely capable of giving meaningful consent to sex."

There's little indication that Yale faculty members are troubled at what happened to Witt--who, after all, lacks a profile that would be appealing to most in today's race/class/gender-dominated professoriate. But as the Spangler Report makes clear, the university's unusual conception of due process can just as easily be targeted against the professors themselves. Indeed, President Levin has all but promised as much: "The new procedures and services we have put in place are necessary, but they are not sufficient."

Perhaps a recognition that they could be the next Patrick Witt will cause some Yale professors to start worrying about the erosion of due process rights on the New Haven campus.

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Let little kids be kids

Britain requires that a demanding "curriculum" be taught to pre-schoolers but there are good reasons to condemn an obsession with early learning, depriving children of fun and formative skills

This is a tale of two sisters. The elder sister, who is now nine, went to nursery at six months (before she could even sit up unaided) and announced, thoughtfully, aged two years and two months: “I want to go to the Mosque and pray to Allah” – which came as a surprise to me, and an even bigger surprise to the parish priest.

As she was my first child, and hence the rather put-upon repository of all-my-hopes-and-dreams, I spent anguished, sleepless nights worrying about her progress and fretting over milestones. So I felt relieved and vindicated to see that, thanks to her early education, she has marvellous social skills, confidence and a lively, interested mind.

The other sister, who is three and a half, is pottering about the kitchen singing snatches of Les Misérables, blowing raspberries and demanding a biscuit as I type.

Flinty exponents of the “nappy curriculum” might observe that her penmanship isn’t quite up to the Lindisfarne Gospels yet, that she jumbles her colours (albeit deliberately, to tease me) and her childcare provision falls into the recklessly relaxed, “pillar-to-post” category.

As she was my second child, she has a much easier time of it as I am far too busy filling and emptying the washing machine to calibrate her fine motor skills on a daily basis.

So I am mightily relieved and vindicated to see that, thanks to her unstructured play, she possesses marvellous social skills, confidence and a lively, interested mind. Gosh. Who would have guessed? Well, for a start, the expert authors of an impassioned letter to The Daily Telegraph, urging a rethink on the “schoolification” of children’s early years.

Academics and authors ranging from Oxford neuroscientist Baroness Greenfield, writer Philip Pullman and childcare guru Penelope Leach have warned that controversial educational reforms are robbing young children of the opportunity and, more alarmingly still, the ability to play.

The compulsory nappy curriculum that all nurseries, pre-schools and childminders are supposed to follow places too much emphasis on formal learning and the three Rs, they claim, and they are going so far as to set up a new group, Early Childhood Action, to push for an alternative, less stifling curriculum.

“Every early-years teacher in the state and the independent sector has told me how much they wish the Government wouldn’t treat childhood as a race,” says Sue Palmer, author of Toxic Childhood and a signatory to the letter.

“Schools have become sausage factories as it is, and putting little children into the grinder earlier and earlier doesn’t make it any better.”

It’s a disturbing image, but there’s a groundswell of opinion that the Government needs to be shocked into taking action. Although the Coalition is reducing the number of curricular targets, it hasn’t dispensed with them all.

“The first years of a child’s life are crucial in their development and the Audit Commission said just last week that the introduction of the 'nappy curriculum’ hasn’t made any difference to children’s academic attainment by the age of seven.”

Quite so. My elder daughter, Lily, passed through nursery before the Labour government’s Early Years Foundation Stage became mandatory, in 2008. I’m very glad she missed it; as far as I could tell, there was quite enough structure in place already, without requirements to achieve multiple academic targets (69 to be precise) by the age of five.

Without wishing to sound like an old hippy, isn’t childhood supposed to be about fun? I mean, if you can’t smear paint in your hair and babble a load of old nonsense when you’re two years old, when can you?

I’m no educational consultant, but even I see no advantage to insisting children learn to read before they’re five. On the contrary, it’s downright harmful to force-feed them phonics when they ought to be balancing on walls, throwing balls and making weapons out of Stickle Bricks.

Some, of course, take to books early, like eager little ducklings to water, but you can always tell the ones who have been hot-housed by pushy parents as they tend (like forced rhubarb) to be pale and anaemic and not nearly as rosy and characterful as those reared, as nature intended, in the fresh air.

I share Palmer’s exasperation and frustration that the unhappy nappy curriculum appears to have been of no empirical benefit whatsoever. One in 10 boys leaves primary school with a reading age of that of a seven-year-old, or worse. Figures released last December revealed that four in 10 pupils seen as high fliers at the age of seven are struggling to reach their potential by the time they sit their end-of-school tests aged 11 – which amounts to 50,000 bright children effectively being failed by the education system.

Oh, and we continue to slip down the league of every international education table. I find it particularly vexing to note that all work and no play makes Jack plunge from 17th to 25th in reading ability. How is that supposed to tally with toddler targets? In the Scandinavian countries, formal education doesn’t begin until seven, and they still outstrip us.

Ironically, alongside the disproportionate importance placed on early academic targets, today’s battery-reared children are losing their independence.

Early-years educationalists report that the youngest pupils are unable to put their coats on, change for PE or go to the lavatory without assistance (62 per cent of teachers say they have seen a rise in toileting “accidents”). The blame for this has been placed firmly at the feet of “busy” parents who haven’t taught the most basic life skill of all to their offspring. How can any mother be that preoccupied, I wonder. And whatever happened to the social stigma of tweenagers in nappies?

Possibly more salient is that changes in legislation mean that headteachers can no longer stipulate children must be toilet-trained before starting school, so there’s less incentive to concentrate the minds of Britain’s more laissez-faire parents.

I wonder if Education Secretary Michael Gove ever bumps into England’s chief medical officer, Professor Dame Sally Davies, in the corridors of Whitehall? Obviously, not recently, or she might have given him an earful about her guidance, published last July, that under-fives should exercise for at least three hours a day.

According to NHS figures, nearly a quarter of children aged four and five are overweight or obese. By 2050, that number could rise to 63 per cent. Our national preoccupation – and the middle classes are more guilty of this than most – with exam results and grades has led to the skewed situation whereby achievements (at least, the only achievements that matter) are all in the mind.

“Emotional and behavioural difficulties are on the rise, communication skills are suffering and children aren’t being physically challenged and interacting with each other, because nurseries are expected to sit them down and crack on with formal work,” says Palmer.

“As long as you talk to your children, sing songs, read books and let them run about outside, then you are laying the foundations for learning later in life.”

Sometimes it’s as if the education system is being run by paranoid first-time parents, excruciatingly fixated on measuring performance and obtaining early results (by any means necessary) rather than on bringing up healthy, happy, enthusiastic youngsters. I used to be a Newbie too, so I know whereof I speak. But now I have two children, and, accordingly, a sense of perspective. And let’s just say that the most magical moments of my early childhood weren’t spent at a desk.

Which is why I think it’s high time politicians took their shoes and socks off, wiggled their toes in the sandpit and asked: “What on earth are we playing at?”

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