Rape

Universities Think Title IX Also Requires Them to Impose Gag Orders on Rape Victims

Not fair for accusers or the accused.

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Silence
Dreamstime

If one needs any additional evidence that university rape adjudication processes are farcical travesties of justice—for both accused students and accusers—look no further than this Huffington Post report on gag orders as a tool for administrators to silence alleged victims.

HuffPost Senior Editor Tyler Kingkade compiled numerous examples of students at different colleges who reported sexual assault to the administration only to be told they were prohibited from speaking—in public or private—about their troubles:

Yenli Wong, a recent Pomona graduate, said that during her senior year she had wanted to write a blog piece for HuffPost about being sexually assaulted, but didn't want to get in trouble for breaking the school's confidentiality rules about the investigation that had taken place. Wong had no intention of revealing her assailant's name—she just wanted to tell her story. But the school had previously told her that breaking the gag order would open her up to disciplinary charges.

In an email, Pomona Dean Miriam Feldblum told Wong that her blog post could "refer to specific relevant policy sections in the Handbook, such as 'non-consensual sexual contact,'" but could not disclose details from the "alleged policy violation statement."

Wong says Feldblum's response was nonsensical to her, because it didn't explain whether the blog post would be considered a violation of the gag order.

"I felt very trapped and was extremely worried that the college might punish me if I spoke out about what happened to me," Wong said.

Pomona went further than that: Without prompting, the school warned Wong's boyfriend, Julien Breistroff, that if he disclosed information about the case, he, too, would be opened up to disciplinary charges, according to emails provided to HuffPost. 

Free speech is indeed imperiled at Pomona College when administrators don't merely prevent participants in a dispute from talking about their ordeal—the also try to limit the conversation by going after anyone who might have knowledge of it.

In another example—this one at Columbia University—neighbors overheard a couple arguing, and reported this to the university. Administrators then imposed a no-contact order between the two, even though the woman (who later admitted she was in an abusive relationship) had refused to cooperate in any kind of investigation or formally accuse her boyfriend.

Why are universities censoring their students and meddling in private affairs when they haven't been invited to do so? The culprit is the same federal gender equality law that makes the sexual assault adjudication process a Kafka-esque hell for accused students: Title IX.

Since no one seems to have a very good understanding of what Title IX actually requires—including and especially the Education Department's Office for Civil Rights, the agency that enforces the law—universities live in perpetual fear of losing federal funding because they accidentally violated it. To safeguard themselves against the legal and financial ramifications of ending up on OCR's bad side, many administrators interpret Title IX as broadly as possible—more broadly than OCR, in fact—to the detriment of due process and free speech rights for students and faculty.  This is the kind of regulatory environment that produces witch hunts against people like Northwestern University's Laura Kipnis; it also led City University of New York officials to erroneously conclude that they had to police the use of gendered pronouns.

The gag orders are a byproduct of Title IX compliance as well:

Colby Bruno, senior legal counsel at the Victim Rights Law Center in Boston, says the way colleges are applying no-contact orders, placing an equal onus on both students, is misguided.

"They think if we don't do this to both people, then we are in violation of [our obligations under] Title IX to be equitable," he said. "That's not the case."

Bruno's comment suggests to me that he would prefer, or believes that Title IX requires, one-sided gag orders. This strikes me as much worse: shouldn't an accused student have the same right to speak his mind as his accuser does?

The stark reality that anti-rape activists have trouble admitting is this: universities will never be on their side. They are not in the business of dispensing justice; they are in the business of protecting their brand and financial resources, which means insulating themselves from the consequences of crossing the feds. As a result, compliance—rather than justice, fairness, or due process—is the paramount goal of the campus adjudication process.

Neither accusers nor the accused are well-served by such an environment. But instead of reforming aspects of the process—gag orders, for instance—to be even more one-sided, universities should be stripped of their obligation to handle rape disputes entirely. The criminal justice system, flawed though it may be, is still a better arbiter than Columbia University or Pomona College. 

NEXT: Sandra Bland and the 'lawful order' problem

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  1. The stark reality that anti-rape activists have trouble admitting is this: universities will never be on their side. They are not in the business of dispensing justice; they are in the business of protecting their brand and financial resources, which means insulating themselves from the consequences of crossing the feds. As a result, compliance?rather than justice, fairness, or due process?is the paramount goal of the campus adjudication process.

    Neither accusers nor the accused are well-served by such an environment. But instead of reforming aspects of the process?gag orders, for instance?to be even more one-sided, universities should be stripped of their obligation to handle rape disputes entirely. The criminal justice system, flawed though it may be, is still a better arbiter than Columbia University or Pomona College.

    The best thing I’ve read today.

  2. Universities gag rape victims? There’s a STEVE SMITH joke in there somewhere, but I just had all you can eat tacos and don’t feel up to it right now.

  3. The criminal justice system, flawed though it may be, is still a better arbiter than Columbia University or Pomona College.

    Criminal justice may be better served in the criminal justice system, Mr. Soave, but these colleges are social justice territory.

  4. But instead of reforming aspects of the process?gag orders, for instance?to be even more one-sided, universities should be stripped of their obligation to handle rape disputes entirely.

    That doesn’t exactly make sense, either, as the schools will need to retain a decision-making process for internal discipline up to and including expulsion, regardless of whether anyone is prosecuted or convicted.

    1. But that seems like something that can be decided by the schools individually. I think the point was that the government shouldn’t dictate what the schools do.

    2. I think the key word in that phrase is “obligation”

      Of course universities (like any institution) can still have policies and processes for handling complaints or misconduct

      The point is that their current behavior is *compelled*,

      The current inquisition-style handling of sexual assault in particular is mandated by Federal Law as interpreted by a batshit-crazy OCR.

      There’s no reason that after a repeal of Title IX that colleges couldn’t adopt whatever policies for internal discipline they feel necessary. Its the issue of these processes being imposed under threat of Federal Investigation

      1. I get that. But do you think they’d adopt policies we thought were better, after all this, in the current sociopolitical climate?

        1. I think there is a good chance some schools would get worse. But presumably they’d suffer for it through decreased enrollment if potential students were really put off by it. The point is students would have options, and a sane and fair process could be something schools try to sell potential students on.

          1. I think there is a good chance some schools would get worse.

            I don’t think this is true. (other than in the sense that here are a lot of schools to it’s likely “some” will do anything). But in general the Dear Colleague letter grants the administrators carte blanche to justify their most extreme preferences. The activists who manage the Title IX and sexual assault centers are the most extreme people in the university bureaucracy. If they had to justify the proposed rules with their own judgement rather then some clearly insane interpretation fostered by an unaccountable government official they would be subject to much more pressure from whatever reasonable people do exist in campus management.

        2. Given the sort of lawsuits they’re facing while complying with Title IX, it’s not clear how much worse they could possibly get without either bankrupting themselves. Which isn’t to say some administrators wouldn’t be dumb enough to try.

        3. Oh no, i think a number of them would go even farther down the path to full-retard

          But it would at least free up schools to adapt as they start to get sued for their idiotic way of handing things.

          There is a whole industry building up around ‘Title IX/Clery Act compliance’ at universities, and that kind of entrenched consituency tends to enlarge its power rather than be content with their narrow mandate.

          While I think scuttling the DoE entirely would be the ideal solution, repealing Title IX is more in the realm of conceivability… but it just boggles me why saying so seems to be ‘one toke over the line’ for pundits.

    3. The only obvious answer is to return to gender-segregated campuses and off-campus student housing, rigidly enforced by a black-shirted paramilitary organization in which each domicile which contains a student has an armed agent assigned to the premises at all times.

      1. Don’t forget rigid prohibition against alcohol. After all, if nobody drinks, then there will be no drunken hookups.

      2. Gojira,

        I like your plan, but think it will fail unless htis paramilitary organization is staffed with cadres that understand that allowing insufficiently clad women out of a building – even if the building is on fire – exposes women to an unacceptable risk of rape. Therefore they should have the training and will to prevent insufficiently clothed women from going out into public…. for their own good.

    4. Just make a policy that says you won’t discipline someone for rape or murder without an arrest.

      1. Well in principle I’m OK with students being disciplined even without an arrest. The point is that each college should be able to decide for themselves how that process will work.

  5. i’m still not hearing the “repeal” word

    1. Repeal and replace… with gender-specific campuses.

      1. you crazy brah

        I meant, “Repeal Title IX”

        serious people have proposed this before without being lynched by a mob of Gender Justice Advocates. or so I’ve been told.

        1. I don’t really know what all Title IX entails, but there are more women in college today than men. That doesn’t mean that there couldn’t still be lingering inequities in the system, but access sure isn’t one of them.

          1. The new focus on “sexual violence”

            (*note they don’t use the technical terms like ‘assault’ or ‘rape’ – because vagueness helps them apply it to everything)

            …is fairly new. (since 2011 i believe)

            Everything it has wrought has been fucking terrible. And the transition to ‘everything sexual’ seems to have been done to keep the law relevant in an age where there’s no longer any major glaring inequities between women and men in college.

          2. I don’t really know what all Title IX entails,

            Title IX only prohibits sex and racial discrimination on campus. Applying it to sexual assault is absurd in the first place. Sexual assault is not discrimination, it’s a violent crime.

            1. “…and racial discrimination”

              Nope. Gender-only.

            2. “Sexual assault is not discrimination, it’s a violent crime.”

              well, that’s the rub, aint it?

              The point I linked to noted that the 2011 expansion of the act’s coverage defined “sexual violence” as a form of discrimination/harassment… and thereby granted itself an entirely new mandate

              (given the decreasing number of ‘problems’ to solve in men vs. women’s sports)

              “Title IX of the Education Amendments of 1972 (Title IX) broadly prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. Sexual violence is viewed under the law as an extreme form of hostile environment/sexual harassment and must be addressed.”

              This idea that an office of government lawyers can just cook up “new applications of old laws” whenever they feel like is basically the point I’m trying to make about why repealing Title IX is the only way to get these federal monkeys off the backs of universities. People seem terrified of endorsing the idea because “War on Women” or some such bullshit.

              1. They are terrified for good reason. The war on women rhetoric has died down, but the machine is still there and ready to rev up. Anyone who tried to touch Title IX in any way that wasn’t expanding it for the explicit benefit of women would be crucified in the media and be used as a cudgel to beat the entire republican party (They wouldn’t even have to be a republican) with for the next five years.

                1. “Anyone who tried to touch Title IX ….would be crucified in the media’

                  All the more reason to *start* floating the idea so that people can talk about it without being burned at the stake.

                  I appreciate that politicians aren’t going to run on a platform of TITLE IX = DIE!!

                  But you’d think little magazines like Reason might dare to opine about the possibility.

              2. I think the better political solution is to:

                1. Issue a new Dear Colleague letter stating the one in question is rescinded and utterly imbecilic,

                2. Fire every employee of the Department of Education from that time or since who developed, enforced, or so much as nodded in agreement at any time.

                3. Pass a law stating that any institution hiring the people from item (2) will be ineligible to receive federal funds.

                1. I’m with you, with one minor change:

                  Fire every employee of the Department of Education from that time or since who developed, enforced, or so much as nodded in agreement at any time.

                  1. I make some concession to political reality.

  6. They’re just fine with compliance, because right now, compliance means railroading the accused.

    1. Great episode. Great series.

  7. Way to take a dig at Columbia. Pretty easy for someone who didn’t go there.

  8. The stark reality that anti-rape activists have trouble admitting is this: universities will never be on their side. They are not in the business of dispensing justice; they are in the business of protecting their brand and financial resources, which means insulating themselves from the consequences of crossing the feds.

    It’s interesting how the venality, laziness, and cowardice of bureaucrats is always the wall that just about anyone hits, whether it’s someone trying to get a permit to add an extension on to their house, or rape obsessives trying to railroad people, or a rape victim trying to tell their story, or the myriad of other parts of life that we now cannot navigate without dealing with the parasites known as administrators and bureaucrats.

    1. But how will the Emperor maintain control without the bureaucracy?

      1. The regional governors now have direct control over their territories. Fear will keep the local systems in line. Fear of your mom.

        1. Does she have a very angry-looking vagina?

    2. Now, when twilight dims the sky above
      Recalling thrills of our love
      There’s one thing that I’m certain of
      Return I will to old brazil

      God, I love that song.

  9. Hmm, so does the gag order mean they can’t go to the police? Maybe the university could be charged with aiding a felon in the case of a real rape…

  10. Look at universities —- this is what progs believe ‘justice’ to be; truly perverted

    Whenever they use the word ‘justice’ as apart of anything, what the mean is the exact opposite

  11. So. Title IX is another way of saying ‘winging it’? Invent shit as we go along!

  12. This could be a gold mine for students who ignore the orders and sue.

  13. You lost me when you started quoting Tyler Kingkade.

  14. universities live in perpetual fear of losing federal funding because they accidentally violated it.

    This is not a credible explanation. Is there even a single example of a university that lost its federal funding due to Title IX violations, let alone an unwitting (“accidental”) one?

    This is simply not how DoE OCR enforcement works. Two decades ago, I filed a complaint with OCR for a Title VI violation, after my university refused to enforce its existing non-discrimination policy, and actually ended up revising the policy to allow a funded student group to openly practice racial discrimination. Two years later, the university entered into a consent decree reverting back to the prior (unenforced) policy, with no penalties imposed.

    It’s impossible to reasonably conclude that even intentional discrimination runs the risk of inadvertantly losing federal funds.

    To the degree that universities defend outrageous policies as being required by Title IX, it’s certainly not because of a sincere fear over losing federal funds. What they are really saying, at most, is that they fear potentially having to engage with OCR in an enforcement proceeding more than they fear whatever pushback they may get from students, the public, or the press, over the policy. And far more likely, they are just using Title IX as a convenient excuse to deflect criticism over a policy they adopted for their own reasons, wholly independent of Title IX or any other federal law.

  15. Repeal Title IX. Job done.

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