Monday, September 25, 2017

The campus rape panic is destroying due process and ruining lives

US education secretary Betsy DeVos has hit the headlines again for speaking out on Title IX, the controversial federal law that ensures gender equity in education. Last week, she promised to ‘replace the current approach with a workable, effective, and fair system’. She is getting a lot of flak, especially from feminists, but her comments should be welcomed: it is common knowledge now that Title IX has become, at best, unworkable, and at worst subject to serious abuse.

When it was first passed, Title IX of the Education Amendments Act of 1972 stated that every educational programme which receives federal funding must give men and women equal opportunities. It was most effective in making sure women were not discriminated against when it came to sports scholarships. In its infancy, it was a mere 37 words.

But since 1972, it has been continually interpreted and stretched so that it now covers far more than making a legal defence against discrimination. It now serves to police students’ private lives on campus, covering everything from misplaced jokes or comments to allegations of rape and physical assault.

The most stark example of this shift came with the Office for Civil Rights’ ‘Dear Colleague’ letter in 2011. The OCR stated that sexual harassment ‘includes unwelcome sexual advances, requests for sexual favours, and other verbal, non-verbal, or physical conduct of a sexual nature’. Translated, this meant Title IX could be used to prohibit ‘unwelcome verbal conduct’, which, as many have pointed out, could mean anything. In 2016, at the University of Texas at Arlington, a student faced a Title IX investigation after allegedly criticising another students’ sexuality – the accused denied the incident even happened, and later committed suicide after he was found responsible.

An even bigger problem with the ‘Dear Colleague’ letter’s additional stipulations for Title IX investigations is that universities are now required to work with a ‘preponderance of evidence’ standard, also known as ‘50 per cent and a feather’.

This means that, rather than following due process, Title IX officers can begin their investigations on the assumption that an allegation is true. Even in complaints about rape and serious physical abuse.

One of the most jaw-dropping Title IX cases involved Matt Boermeester, a student at the University of Southern California, who was suspended after an onlooker accused him of abusing his girlfriend, Zoe Katz. Both Boermeester and Katz told investigators they were just ‘playfully roughhousing’ and they tried to get the investigation quashed.

Katz described the mistreatment she suffered when she was summoned to give her testimony to Title IX investigators: ‘I was stereotyped and was told I must be a “battered” woman.’

Boermeester was later suspended and barred from entering campus.   Because of the preponderance of evidence standard, Title IX investigators willingly ignored common sense, punished an innocent man, and put a young couple through a nightmare.

It should never be the job of a university to carry out investigations into serious allegations like rape and sexual assault – especially when cases are seldom clear-cut. The problem with asking college administrators to deal with quasi-criminal investigations is most clear when it comes to drunk sex. Many feminists and PC warriors now believe that even consensual drunk sex should be classed as rape. Former vice president Joe Biden, an open advocate of the expansion of Title IX’s expansion, famously said: ‘If a young woman is drunk, SHE CANNOT CONSENT… She cannot consent, and it’s rape. It’s rape. It’s rape. It’s rape.’

Anyone who’s ever had a glass of dutch courage before a date will know how ludicrous, and insulting, this statement is. But the anti-drunk-sex theory is central to many Title IX cases. Take the case of two students at Occidental College in 2013. They had consensual sex while drunk one night. Both agreed at the time that it was consensual sex. Months later, the woman filed a Title IX complaint against the man, and he was expelled. Why? Because ‘Occidental’s sexual misconduct policy forbids students from having sexual contact with anyone who is “incapacitated” by drugs or alcohol’.

DeVos is right – we need to talk about Title IX. It has become the weapon of choice for those who want to peddle the idea that women are in need of protection. Using Title IX to cover ‘verbal conduct’, outlawing drunk sex and doing away with any notion of due process flies in the face of equality.

Title IX was originally intended to be a short legal stipulation prohibiting discrimination. Now it is used to support the idea that women are more vulnerable, more endangered and less capable than men. The use and abuse of Title IX is becoming increasingly hysterical, notably in the case of professor and author Laura Kipnis, who was subject to a Title IX case simply for writing about another Title IX case.

At the same time, though, we need to recognise that while it’s important to roll back the ‘Dear Colleague’ letter and review Title IX, that alone won’t be the antidote for the panic around sexual harassment in education. The problem lies in a much deeper cultural trend on campus and in society, one which sees women as vulnerable and men as dangerous.

The censorious use of Title IX by feminists is not new: in the 1980s, anti-porn feminists like Catharine MacKinnon encouraged the use of Title IX to police nasty words said to women. Title IX is a tool to pursue cultural prejudices and fears; it isn’t the source of those prejudices and fears.

We need to get serious about busting the myth that university is a dangerous place, and instead champion the idea that women should be trusted to deal with private matters – even unpleasant ones – without the intervention of campus authorities.

So yes, let’s review Title IX. But unless we also tackle the broader, sadly feminism-fuelled view of women as damsels in distress, tinkering with Title IX won’t change much at all.


DeVos rescinds Obama-era guidance on investigating campus sexual assault

Citing a key federal court ruling in a Brandeis University case, the Trump administration on Friday advised college officials across the country to evaluate sexual misconduct claims by the same standard of evidence they use for any other student infractions.

The move by Education Secretary Betsy DeVos could make it tougher to prove allegations of sexual assault at some universities.

DeVos formally rescinded the Obama administration’s 2011 directive requiring colleges to aggressively investigate all sexual assault claims using a relatively low burden of proof. She also offered guidance for universities to handle sexual assault cases while her department develops a replacement policy.

“Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug,” DeVos said in a statement. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

Aimed at ending a “rape culture” on campuses, the Obama-era sexual assault policy required colleges to aggressively investigate all sexual assault claims, or risk losing federal funding. Allegations of schools mishandling such cases triggered hundreds of federal investigations, including at least 26 in Massachusetts.

But the policy also faced criticism from civil libertarians, in particular for lowering the burden of proof from the “clear and convincing” standard used to weigh other types of disciplinary action on campus. Instead, the Obama administration rule called for campuses to consider sexual assault cases on a “preponderance of evidence” — whether the evidence suggests the offense “more likely than not” occurred.

The interim guideline released by DeVos allows colleges to adopt whichever standard they already use in other student discipline cases. In a footnote, she pointed to a 2016 decision that faulted Brandeis University for lowering the standard only in sexual assault cases, calling it “a deliberate choice by the university to make cases of sexual misconduct easier to prove.”

“The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students,” US District Judge F. Dennis Saylor wrote in his decision.

A Brandeis spokeswoman on Friday defended the university’s commitment to taking accusations of sexual assault seriously and treating students fairly.

“When instances of sexual misconduct are reported, we are committed to responding promptly and equitably,” Julie Jette said in a statement. “The Department of Education’s interim guidance will not diminish our efforts in this area.”

In the Brandeis case, a gay male student was found guilty of sexual misconduct, with a note on his permanent record, after his ex-boyfriend of nearly two years claimed he had engaged in sexual misconduct during the relationship. Among the infractions: kissing him in his sleep.

Though the student ultimately withdrew his case without a settlement, the case has been viewed as one of the harshest judicial assessments of a campus sexual assault policy that arose from the Obama administration’s guidance. Under Brandeis’s policy in 2014, students weren’t entitled to know the details of the charges against them, see the evidence, be represented by a lawyer, or cross-examine the accuser or witnesses, according to the ruling.

“There has been a veritable witch hunt in the country, primarily under the Obama administration,” said Harvey A. Silverglate, a civil liberties lawyer from Cambridge and coauthor of “The Shadow University: The Betrayal of Liberty on America’s Campuses.”

“We’re starting afresh and the Department of Education is showing that it’s got its mind open rather than closed.”

DeVos had announced plans earlier this month to roll back the 2011 policy, though the changes do not affect the underlying law on which the policy was based. Campuses are expected to guard against sexual harassment and gender-based intimidation and violence under Title IX, the 1972 gender discrimination law aimed at protecting students’ rights to an education.

The Obama administration ratcheted up expectations for colleges in 2011 without a regulatory review process, but instead in the form of a so-called Dear Colleague Letter. The Trump administration pledged on Friday it would seek public input in the process of replacing the policy.

“We’ve long held that that’s what they should have done in the first place, that women’s rights advocates have important points that need to be heard, due process advocates have important rights that need to be heard,” said Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a campus free speech organization that Silverglate cofounded.

Interestingly, the policy was changed on Friday via another “Dear Colleague Letter” — this one signed by Candice Jackson, the education department’s acting assistant secretary for civil rights, who is herself a controversial figure in the field of sexual assault.

Politico reported recently that in applying for the education department job, Jackson touted on her resume her work targeting Bill and Hillary Clinton — even accompanying the women who had accused Bill Clinton of sexually predatory behavior prior to a presidential debate last year just after Trump was accused of sexual assault. She also had been quoted dismissing the majority of claims that her office handles as drunken consensual encounters that someone later regretted. That has led many women to question her department’s agenda as it reconsiders sexual assault policy.

“I think that a lot of people are reacting with panic,” said Janet Halley, a Harvard Law School professor and expert on sexual harassment.

Advocates for survivors of sexual assault fear a retreat on years of progress in which they were finally being heard. Fatima Goss Graves, president and CEO of the National Women’s Law Center, said that reversing the policy will have a “devastating impact on students and schools.”

“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe,” she said in a statement.

Massachusetts Attorney General Maura Healey, one of 20 Democrat state attorneys general who had urged DeVos to keep the old rule, said Friday that DeVos had “abandoned survivors of sexual assault on college campuses and all students looking to learn in a safe environment free from violence and discrimination.”

But Halley who is among the lawyers who have been arguing for years that the system was unfair and needed revision, said DeVos did not signal a reversal of campus rape protections.

Instead, Halley said, DeVos “reaffirmed that colleges and universities have a responsibility to respond robustly to claims of sexual misconduct on behalf of the educational opportunities of all students.”


Campus sexual assault policies are unfair to the accused. This case shows how

Education Secretary Betsy DeVos ignited a firestorm in recent months after signaling that she might pull back Obama administration policies intended to protect victims of sexual assault at college campuses. But amid the intense criticism directed toward DeVos, one lawsuit out of Amherst College demonstrates just how unfairly the Obama policies can operate for students wrongly accused of sexual misconduct.

On a factual basis, the Amherst case — settled out of court this month between the university and an expelled student accused of sexual assault — is one of the most egregious since the Obama administration implemented its policy in 2011. The lawsuit revealed documents that the public almost never gets to see, such as the full investigative file, the transcript of the disciplinary hearing and other material from the campus process.

As a result, this case is perhaps the most comprehensive documentation of any single campus sexual assault adjudication in recent years.

The lawsuit arose out of a sexual assault complaint filed by an Amherst student 18 months after the assault was alleged to have occurred. The complainant claimed that she was forced to perform sexual acts, so the college conducted an investigation and held a disciplinary hearing before three administrators, expelling the accused student. But the hearing failed to include key evidence suggesting that the complaint was false, so the accused student sued the university in federal court.

As laid out in the legal complaint and subsequent filings, the controversy over the investigation has focused mostly on a string of texts that the accuser sent the night of the incident. The texts suggest that she had initiated the sexual encounter and that she was in search of a “good lie” to avoid fallout for having hooked up with the accused student, her roommate’s boyfriend.

Initially, the accuser denied sending any texts relevant to the case. During the college’s disciplinary hearing, however, the accuser appeared to contradict that claim, twice admitting that she had sent relevant texts. Inexplicably, none of the panel members asked her to address the contradiction.

When the accused student eventually learned of the texts, Amherst said he had found them too late, according to the school’s response to the legal complaint. The college later clarified that the timing didn’t matter, since investigators only sought texts indicating “that the incident had been ‘non-consensual.’ ” Exculpatory evidence, it seems, was irrelevant.

The accused student claimed in a suit that the college had violated his Title IX rights, and a federal district judge allowed the case to proceed. After the judge expressed strong skepticism toward Amherst’s investigation, the two sides came to a settlement.

Defenders of the Obama administration’s policies — which re-interpreted Title IX to require all colleges receiving federal funds to use the lowest possible standard of proof when adjudicating sexual assault cases — argue that the change was needed to bring justice to college rape cases. Such crimes often go unpunished because prosecutors rarely try ambiguous campus claims of sexual assault.

But Amherst’s procedures, which typify Title IX tribunals nationwide, show the danger of schools moving too far in the other direction. The college found the student guilty by a preponderance of the evidence — in other words, that more than 50 percent of evidence points to guilt. Amherst denied him and his lawyer the opportunity to directly cross-examine the accuser. It conducted the investigation and the hearing so quickly that college officials never discovered the text messages, the key piece of evidence in the case.

The desire to protect students from sexual assault has produced a system that struggles to determine the truth. Bypassing the criminal-justice system sacrifices the legal power to uncover relevant electronic, photographic or video evidence. Coupled with one-sided campus procedures, students such as the one from Amherst are forced to prove their innocence under conditions that make it virtually impossible to do so.

And there’s no indication that Amherst plans to implement fairer procedures in the future. The college issued a five-word response to the settlement: “The matter has been resolved.”

In recent weeks, accusers’ rights organizations have leveled the most intense criticism of DeVos’s efforts to reform Title IXand have praised the expulsion of the wrongfully accused Amherst student. Certainly such advocates should be commended for standing up for sexual assault survivors. But in their willingness to defend manifestly unfair results, activist groups have been too quick to dismiss concerns that innocent students can be found guilty.

Extremists, of course, exist on both sides of this issue: DeVos has correctly received criticism for meeting with a “men’s rights” group. And for important social and historical reasons, we should sympathize with student survivors of sexual assault.

But due process is all the more important when addressing highly charged issues, especially when schools make life-altering decisions on the basis of wildly incomplete evidence. DeVos can, and should, demand that higher education do better. Undergraduates shouldn’t need to spend years in court to achieve justice from their colleges.


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