Law & Government

Law Professors Against Title IX: Faculty Worried About Due Process on Campus

Dispatches from the American Association of Law Schools' annual meeting.


Robby Soave / Reason

It was quite the packed panel discussion: a dozen mostly left-leaning speakers, each allotted 10 minutes to give their thoughts on a controversial topic, Grappling with Campus Rape. The venue was the American Association of Law Schools' 2016 meeting in New York City in early January. The lineup consisted primarily of actual law professors, and featured some undeniable heavy hitters on the subject of campus rape, including Michelle Anderson, dean of the City University of New York School of Law, and Mary Koss, a Regents' professor of health at the University of Arizona and the originator of the one-in-five statistic about rape prevalence. 

The setup was predictable. The answers, on the other hand, were frequently shocking.

To be fair, many of the panelists expressed at least some enthusiasm for the federal government's recent efforts to compel universities to adjudicate rape—unsurprising, considering their liberal-leaning politics. But nearly all the speakers had something negative to say about the way anti-harassment guidance is being interpreted by government authorities, and many were openly hostile toward the idea that the prevention of rape was a campus matter. Several others were plainly disturbed by the pitiful state of due process rights on campus.

"'Rights' is a generous description of what these schools gave the accused," said Tamara Rice Lave, an associate professor of law at the University of Miami, during her brief presentation.

Harvard vs. The Hunting Ground

With college administrators across the country clamping down on the rights of students and teachers under the imperious auspices of federal guidance, pockets of isolated resistance have formed among the faculty. But no group of educators has taken as bold a stand for justice as Harvard Law School professors, whose insistence that an accused student deserved a fair hearing has put them at odds with the activist filmmakers behind the misleading anti-rape documentary The Hunting Ground.

The Hunting Ground producers Amy Ziering and Kirby Dick's daily verbal assaults on the Harvard law professoriate have grown even more unhinged as of late: in a recent interview with Robert Scheer, Ziering accused the film's critics of attempting to protect "dominant white male power," even though two of the main objects of the film's ire—including the accused young man at Harvard—are black men. Further complicating filmmakers' false narrative is the fact that the most visible and active of the incensed Harvard professors are women: Jeannie Suk, Janet Halley, and Elizabeth Bartholet.

Harvard's stand is not yet rolling back the war on campus due process, but it's drawing significant publicity to the cause—challenging The Hunting Ground's Oscar chances in the process (Update: Oscar nominations were released moments after this article was published. The Hunting Ground does not appear on the "Best Docuemntary" list, meaning, in a sense, that Harvard prevailed). Which raises the question: what if law professors everywhere did the same?

Of course, it could simply be the case that Harvard's faculty is an aberration, and most law professors are perfectly willing to march in lockstep with the new understanding of Title IX, the federal regulation widely cited by President Obama's Education Department as justification for campus-centric judicial proceedings relating to harassment and sexual assault. But that doesn't seem to be the case, if the mood at AALS's 2016 meeting is any evidence.

The Tangled Web of Title IX

 When it was her turn to speak on the panel, Aya Gruber, a professor of law at the University of Colorado, expressed concern that the laser-focus on campus rape, as opposed to rape in general, was unwarranted by the facts. (Indeed, non-college women are in more danger of experiencing sexual violence than students, according to the data.) She also denounced the idea that encouraging more women to see themselves as victims was in and of itself a positive result of increased Title IX pressure.

"I worry that activists write off non-reporters' perspectives," she said during her presentation. "Should we be contented or concerned when victims file a suit much later after talking to a counselor?"

The panel also included Cynthia Garrett, an attorney and board member of Families Advocating for Campus Equality, a group that offers assistance to students wrongfully accused of sexual assault. Garrett yielded most of her 10 minutes to Joseph Roberts, one such student, who described the pain of being expelled from his university, mere days before his graduation, for a crime he didn't commit. He waited in vain for a sexual misconduct hearing that his college, Savannah State University in Georgia, never granted him.

Another panelist, University of Kansas Law Professor Corey Rayburn Yung, praised the goals of Title IX advocates but was somewhat doubtful that Title IX itself was actually the best way to achieve the ends activists want. He pointed out that gender-based discrimination and sexual assault were actually quite distinct things, even though OCR's current interpretation of Title IX lumps them together.

The difference is meaningful. Sexual harassment usually takes place between a supervisor and an underling, whereas assault is peer to peer: i.e., between two students of equal status. Asking universities to adjudicate the latter category of conduct means asking them to play the role of an indifferent third party settling a dispute, he explained. But if universities are supposed to be indifferent third parties in sexual assault disputes, they may not ultimately be liable for the kinds of abuses that happen under their purview.

"Title IX is serving two confusing functions on campus," he said.

Yung was also concerned that the guidance issued by OCR in the form of "dear colleague" letters had no actual legal backing. "Universities are rubber stamping these dear colleague letters without knowing if they actually carry the force of law," he said.

CUNY's Michelle Anderson struck a less pessimistic note, but only because she was satisfied that the courts "are appropriately correcting overreach by campuses." She remained adamant that it would be a grave moral crime to establish mandatory minimum sentences for students found guilty of sexual misconduct on campus—California Gov. Jerry Brown vetoed such a law last year. "Feminists don't want [mandatory minimums]," she said.

Even the star of the panel—famed sexual violence statistician Mary Koss—spent much of her time criticizing the science and prevention strategies peddled by mainstream anti-rape activists. Koss, who Reason has interviewed previously, is skeptical of David Lisak's serial predator theory, which holds that most campus rapists are repeat offenders who must be dealt with in punitive fashion.

"The data is not supportive of serial rape," she said.

According to Koss, the reality of campus sexual misconduct is a sliding scale of infractions ranging from verbal harassment to violent assault. Not all such infractions are best resolved by criminal or campus judiciary proceedings, she said. Koss champions "restorative justice," a process that would allow students who wronged one another to make amends and learn from the experience without necessarily compromising their positions at school. Unfortunately, OCR's guidance doesn't leave much room for this—or any other—strategy.

The panel's only unapologetic defender of Title IX's current legal landscape was Sejal Singh, a recent graduate of Columbia University who works as an organizer for Know Your IX—the entire purpose of which is to maintain Title IX as it is presently understood.

'Liberty at Stake'

It would be incorrect to say that the panelists were in agreement—their compliments and critiques of Title IX were all over the map. But that's largely the point: this was not a united body of scholars quietly endorsing the current campus legal regime. This was a raucous group of lawyers and experts clearly passionate about combatting rape but frequently skeptical—in some cases, stridently so—that Title IX was the right tool and that students' due process rights were being respected.

Given these opinions, and given that Harvard's law faculty is currently fighting an admirable war against The Hunting Ground, advocates of due process should be rooting for more law professors to join the uprising.

As Lave said during her presentation on the panel, students deserve due process rights because "liberty is at stake."