Will President Trump Fire the College Sex Police? Q and A with Attorney Andrew Miltenberg

'We're holding college students to a much higher standard than we're holding the leader of the free world.'

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Trump and Melania
MIKE THEILER/UPI/Newscom

The bizarre manner in which sexual assault disputes are investigated on college campuses could be overhauled now that Donald Trump has been elected president instead of Hillary Clinton.

Indeed, many victims' advocates are concerned that Trump's Education Department will roll back the Office for Civil Rights' enforcement of Title IX, which is largely responsible for the proliferation on campus kangaroo courts that deny fundamental due process to accused students. Know Your IX, an activist organization that aids student accusers, told Inside Higher Ed that the kind of reforms Trump is likely to make would be "disastrous and devastating" for students.

But the status quo is disastrous and devastating for students who are accused of sexual assault and harassment. The federal government has instructed university administrators to handle these cases themselves—to investigate wrongdoing and determine punishments—without recognizing students' basic rights. Accused persons are frequently denied legal representation, the right to confront their accusers, the ability to properly consider the evidence against them, and the right to an impartial jury.

But does Trump have any credibility to fix what's wrong with Title IX, given that the president-elect was accused of sexual harassment by a number of women?

Andrew Miltenberg is an attorney who specializes in campus sexual assault disputes. He has represented accused students in a number of high-profile cases—including Paul Nungesser, the Columbia University student accused of rape by "mattress girl" Emma Sulkowicz. He is also representing Grant Neal, who was expelled as a result of perhaps the most Kafka-esque Title IX investigation I have ever written about.

I talked with Miltenberg about how Trump's victory is likely to impact the campus rape debate. (This interview has been lightly edited for readability.)

Reason: I think a lot of people, myself included, expected Hillary Clinton to win the presidency and give us at least four more years of OCR and Title IX overreach. But what's going to happen now?

Miltenberg: It's interesting. One way it could go is there would be a clear and decisive message from the new administration to the OCR and the Department of Education that this type of overreach is no longer going to be in favor. And there's some irony to that, because the elected president was accused by many different people of the kind of behavior that the OCR seems very intent on going after, and that didn't seem to have an impact on the public as far as electing him. Which raises yet a different issue, which is you know if the public is going to forgo allegations of sexual misconduct in the president, it certainly would seem to me that the OCR has been overreaching. And at who's agenda, or at who's behest? Because the public, the American people, elected a president who under any type of measure by which the OCR is acting right now, he would been found responsible of sexual misconduct, sexual assault, and would have likely been expelled from the university.

Reason: You saw this irony with the Access Hollywood tapes. The person to whom Trump was making these inappropriate comments, Billy Bush, was forced to resign. Meanwhile Trump has been elected president.

Miltenberg: Not only has Billy Bush been forced out for—I don't know if you could call it—reporting what happened, but for being a conduit for understanding what happened. You know what, the irony is that the OCR, which is tasked with, or its mission is, to act on behalf of the Department of Education on behalf of the American people with respect to civil rights and civil rights issues within publicly funded universities, has not been representing the will or the spirit of the American people, as this election has made clear. Because if it were, presumably the president-elect wouldn't have gotten 50-plus million votes. So you have to wonder up until now, who's agenda was really being pushed at the OCR. To purport to act on behalf of the people of this country, and yet the people of this country don't seem to be particularly interested in this issue. Donald Trump certainly, were he on any college campus across the country, I have no doubt would have been expelled. You had multiple allegations of multiple infractions or violations. He certainly would have been found responsible for one or more of them by virtue of the preponderance of the evidence standard and the way I've seen it play out. And the sanction, because there would have been multiple allegations or complaints, would have been severe.

Reason: I suppose the counter-argument to that would be, well, what the American people think is one thing, what the law says with regard to campuses is another. But then the question becomes, is the law being interpreted correctly?

Miltenberg: And why we're holding college students to a much higher standard than we're holding the leader of the free world. College students who are in many cases inexperienced in the world, and alcohol is playing a role on colleges. If you took alcohol out of the equation, 90 percent of the cases I see would disappear. None of this is to say that there's not sexual misconduct on campus, and none of this means there shouldn't be a greater scrutiny, and this isn't an issue which needs heightened attention. What it does mean is we're holding college students to a much higher standard than we're holding the leader of the free world. The most powerful, single position in the entire world and you have actions by an adult male who was fairly unrepentant about it and I'm not talking as a political issue. And yet you have college students who at least in the cases I've seen almost uniformly say "oh my god I didn't realize she didn't want this" and at best it was unclear and they're being found responsible by virtue of pressure that the Department of Education is bringing to bear. So it seems ironic and yet incongruous that this is happening. And so the hope I guess, not that the OCR backs off completely, because again there is a need for heightened attention and scrutiny and diligence, not just on college campuses, but all over the country. At the same time the hope is maybe the preponderance of the evidence changes, or there is more transparency in the hearing process, or there are greater resources to someone being accused or there are more experienced investigators that are part of the process, and those things I think are doable and hopefully something this administration can change.

Reason: Let's talk about that a little bit. What are the most important reforms that you would liketo see? Perhaps a Trump administration could put out new guidance that says the university should use a higher evidence standard and that we have to have cross-examination. The current guidelines discourage cross-examination, but they don't outright say no to it.

Miltenberg: You know, I did a hearing last week in a New York school. It took about nine hours, there were 14 witnesses. There were a couple things wrong with it, so much so I had to take one of my blood pressure pills during. I'm not kidding, it made me crazy. So they allowed the complainant to make all sorts of outrageous statements. They allowed her to make statements like "I heard from so many of my friends that he's done this to other people." Things that in a real courtroom would compromise a jury, but here it didn't. You had three panel members who clearly had no experience in this area and quite frankly were unimpressive intellectually, and life-experience wise. I mean you wouldn't have wanted them critiquing your next article, let alone sitting in judgment of some serious charges. The report was thin and the investigator made a number of comments that there were, we thought, important witnesses that she didn't think she needed to talk to. The investigator acted essentially as an advocate for the complainant. So in this hearing last week, it was just about everything that was wrong with the Title IX hearings all at once. You had an inept investigator, you had three panel members who were inexperienced and unimpressive and young, you had a Title IX coordinator who was browbeating my client, and you had an unrestrained complainant who was saying things that were just, she was texting one of the witnesses during the hearing. I mean so, it was to me a monument to everything that's wrong with these hearings, and you know. They had time for 13 witnesses, but not time for one or two others that I thought may have given a context to the interaction. So there in lies what I think some of the reforms need to be. I hope that some of these reforms come about and that the evidentiary standard is changed.

The reality is if you sit in a dozen of these hearings you get a very compelling sense that if the allegations, why would the complainant lie? And the accused must have done something, or why else would we be here? It really exists like that, and forgive me for getting worked up, but I challenge any thinking person to come into one of these hearings that I've done dozens, not even two, several three, four dozen, over these past two years, and at literally everyone, with one or two exceptions, it's seems pre-ordained. It's almost like you missed the meeting before the meeting, everyone is that decided. It's a very kabuki theater like event.

The fear I have, and stop me if I rant too much about this, but schools, because there is such a backlash against the Trump election among different segments, and maybe rightly so, there is a backlash among young people, among women, among young men, in the lesbian and gay community, and my fear is that schools are going to sort of double down on the way they approach these cases. As if to say, look we're so unhappy with Donald Trump that we're going to hold firm to what we believe is right and disregard whatever his OCR may do.

Regardless of what side of this issue you're on, I think people can agree two things. One is that there are reforms needed, and two is that this topic, this issue, should be at the forefront. Young women shouldn't, and young men should not fear each other, or the sex police. And you have schools, and that's a whole other topic you can explore, which is that schools have become a de facto moral arbiter

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55 responses to “Will President Trump Fire the College Sex Police? Q and A with Attorney Andrew Miltenberg

  1. Know Your IX, an activist organization that aids student accusers, told Inside Higher Ed that the kind of reforms Trump is likely to make would be “disastrous and devastating” for students.

    Their fragile minds might be shattered when they realize that it’s the police that are supposed to investigate allegations of crimes just like out in the “real world” and that they might have to confront speech that makes them uncomfortable. Blood in the streets, man.

    1. These activist organizations should be investigated for subversive behavior.

    2. But, but, but…If we let the police and the courts handle this sort of allegation, we’ll just get more Brock Turners walking free with a slap on the wrist.

  2. Talk about a Robbyhorse…

    ‘We’re holding college students to a much higher standard than we’re holding the leader of the free world.’

    Prog solution is of course to tighten things down on everyone.

    1. “And–I assume–some of them will be grabbed by the pussy.”

      1. If you want a picture of the future, imagine a small orange hand grabbing a human pussy ? forever.

        1. Yes, yes. Excellent.

    2. Except for John ‘cheese pizza’ Podesta and Bill Clinton.

    3. Can someone explain ‘Robbyhorse’ to me? Is it a term meant to berate him for covering the college beat?

      1. It’s not nice to make fun of UnCivilServant when he’s not here to defend himself.

      2. It’s a portmanteau (correct term?) for Robby + Hobbyhorse, and it flows so nicely off the tongue. I use it as more of a good-natured ribbing than actual criticism. But, yeah, Robby is known for covering the minutiae of Title IX enforcement and other campus doings.

        1. It looks like he will need a new swamp to paddle around in if Trump drains this one.

        1. Well-played, Sir.

      3. Its mostly relevant to the PM links, and how robby tends to only ever share the same “college kerfuffle” bullshit stories, or filtering whatever “real events” are happening through the mediums of Buzzfeed or Vox. e.g. – the latest stupid millenial “hot take”.

        e.g. ISIS could execute 100 virgins with a steamroller, and robby would provide links to Lena Dunham’s latest-tweets about it.

        1. Ok, so it’s exactly what I said. I guess if he had a name like Sullum or Krayewski it wouldn’t be so bad.

          1. Eh, I’ve already used a “You’re Kray, Kray” joke on Krayewski before.

            Why do you have such a Sullum look on your face?

            Can probably make fun of just about anyone using their name if you try hard enough. It can be plenty fun if you get creative.

            Pan Zagloba “The Stickler”|11.30.16 @ 5:23PM|

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            Wood it?

            Zero Sum Game|11.30.16 @ 5:28PM|

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            CZmacure|11.30.16 @ 6:15PM|

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            Zero Sum Game|11.30.16 @ 6:23PM|

            [Investigation intensifies]

  3. We’re holding college students to a much higher standard than we’re holding the leader of the free world.

    I propose a new iron law: “The more powerful one is, the less responsibility one has.”

    1. We’re already there. The President of the US has an enormous amount of authority and power, and almost no actual responsibilities or accountability.

  4. (This interview has been lightly edited for readability.)

    Oh great, fake news.

  5. And at who’s agenda, or at who’s behest?

    and

    So you have to wonder up until now, who’s agenda was really being pushed at the OCR

    *whose, all three times this is gotten wrong in the article.

    Is this a transcript or was this how it was written?

    1. 3 more reasons not to donate.

  6. I don’t see why any politician would take a principled stand on something when it only harms plebs.

    If Trump peels back Title IX it’d be all, ‘rape apologist’, ‘pro-rape’, ‘rapist’s free to rape on campus’ headlines for weeks.

    1. Yeah, and I bet Trump will send an angry tweet or two and that will be the end of it.

  7. Didn’t the boss tell him to lay low during pledge week?

    1. A Pledge Pin!

  8. “Will President Trump Fire the College Sex Police?”

    Yeah, that’s what we’ve all been waiting to find out, Robby.

    1. To be fair, fighting the SJW-types pushing for more Title IX enforcement is a big deal.

  9. We’re holding college students to a much higher standard than we’re holding the leader of the free world.’

    Do people not realize what an oxymoron ‘leader of the free world’ is? How stupid that sounds? A free people do not have *a* leader. Factions within that people might have a leader – and probably several as they self-sort out into cross-factions and overlap.

    The idea that the President *should* lead anything (let alone that he does as a practical matter in 2016) is just insane to me.

    1. It made more sense during the Cold War.

    2. Is he so bad that he doesn’t know where tags go?

    3. Do people not realize what an oxymoron ‘leader of the free world’ is? How stupid that sounds?

      It has a little more oomph in the original German: “Fuhrer of the free world”.

  10. We aren’t holding college students to much higher standards. What we are doing is persecuting the hell out of males, mostly white ones, and attempting to destroy the rule of law. That was always the goal. That Trump had some less than believable accusations leveled at him is irrelevant.

    Still cant figure out why he won?

  11. If he fired every damned person working in the DOE OCR, it’d be a start….

  12. If President Trump shuts down the OCR for un-American activities, I pledge to vote to for him in four years.

  13. But does Trump have any credibility to fix what’s wrong with Title IX, given that the president-elect was accused of sexual harassment by a number of women?

    The Title IX clusterfuck is entirely a creation of an executive branch agency. Why does he need “credibility” (query: why doesn’t being the target of highly dubious accusations of sexual assault certainly give him credibility on this?) when he has the authority to make the change. Pen and phone, bitchez.

  14. does Trump have any credibility to fix what’s wrong with Title IX, given that the president-elect was accused of sexual harassment by a number of women?

    Maybe he, like many young defendants on college campuses, believes de-facto assumption of guilt is unfair?

    1. Every victim deserves to be believed.

      Unless her name is Juanita Broaddrick.

      1. Every victim deserves to be believed.

        (Emphasis mine)

        Phrased that way, it isn’t even wrong.

        No accuser deserves to be believed. Every accuser deserves skepticism as well as to be treated respectfully and as if they are telling the truth, up until it can be shown that they aren’t. Most people have probably lied to the police at some point in their lives.

        Don’t believe me? What is the most common answer to “Do you know why I pulled you over?”

        1. I agree.

          I just find it funny that progs accept unconfirmed allegations as truth unless they’re directed at Bill Clinton.

      2. Not every claim of victimization need be believed.

    2. It’s not even just that. Colleges aren’t equipped to handle criminal trials, to gather evidence (oh wait, no evidence needed…), to evaluate the strength of the evidence, or to do pretty much any of the things a normal court would do. Why are colleges, rather than the courts, trying to handle rape trials!? If there’s an actual rapist on the loose, expelling them from some school isn’t going to do a damn thing. This is absolute insanity and everyone with a brain knows it, yet it persists.

  15. I guess outright repeal of Title IX is too much to hope for….

    1. Certainly too much for a Reason editor to express…

  16. The solution is easy = Abolish the Department of Education.

  17. been reading a lot of discussions lately about sexual assault related stuff…the endless debate over the butter scene in ‘last tango in paris’, and another i can’t quite remember right now. but by far, my favorite was the flattering article written in the first person by a guy who had sex with a woman, and even though she offered no verbal or physical indication she didn’t want to, promptly woke up the next morning and informed the guy that he had raped her. rather than running, he stayed and talked it over with her. after many, many hours, he came to the conclusion that he was wrong. this was held up by most commentators to be a feminist triumph. besides the obvious problems with all that, what amazed me is that if people -including the woman- thought she was raped, why would they just let it go simply because they thought the man was now more enlightened? anyway, my head hurts.

    1. Guilt is a form of currency, and, form an ideological perspective, granting ‘mercy’ (on condition of penance of course) to the ‘offender’ gains you a new convert, while imposing justice merely gains you a captive (and likely an embittered one to).

      This is why feminists want to convince all men that they are serial rapists, that the regular sex they have had was in fact egregiously wrong and criminal. Then, if the men acknowledge their ‘crimes’ and repent, and dedicate themselves to feminism, they are offered a measure of clemency (though the clemency is not absolute; these feminists will still back the right of any of the man’s ‘victims’ to get him incarcerated if she should decide to press charges, and will gleefully declare him irredeemable filth despite his penance as well).

      That’s the idea behind it, as with many other movements’ claims (e.g., ‘all white people are racist’): spread the sense of guilt over imagined crimes as wide as possible, make as many members of the ‘perpetrator’ group feel like shit for no reason, then offer absolution (which, of course, is subject to revocation at any time by members of the ‘victim’ group) on the condition of penance. It’s a great formula for manipulating people, abusive partners make good use of it.

    2. The ‘butter scene’ is another example of the headline (and in this case the story itself) not matching up to the facts.

      I’d never seen the movie, and read this week about how the director and Brando conspired to ‘rape with a stick of butter’ to get the young actress to elicit a honest reaction to being violated.

      Now I’m thinking, “How do you rape someone with a stick of butter? Won’t it go soft very quickly? Sort of get squishy is your hand?” I pictured Miss Schneider flat on her back while Mr. Brando plugged away at her, butter clenched in his fist.

      So I went over to Pornhub and of course they had a clip of these scene. Apparently Miss Schneider spent most of the movie naked, and simulated lots of sex with Mr. Brando. In the scene in question, she’s face down on the floor, pants on, while Mr. Brando kicks a wrapped stick of butter up next to her. He yanks down her pants (of which her reaction may indicate was unscripted) put some butter on his fingers and reached between her legs. That’s all you can see on camera, but I’m assuming Mr. Brando did penetrate her, sticking his fingers where she did not expect.

      That’s not raping her with butter – that’s raping her with his fingers. The butter was incidental, in fact giving him needed lube so it likely didn’t cause her (much) pain. Just say Brando penetrated her without her consent.

      Regardless, it apparently fucked her up for a long time.

  18. Simple solution: replace title 9 with the constitution. Problem solved.

    1. OMG, not the Constitution…….why it was written by Dead White Men, some of whom owned slaves.
      Oh, the Horrors!

  19. For a novelistic treatment of on-campus date rape, see Prized Possessions by Avery Corman, author of Kramer vs. Kramer, first published in 1990. It is enlightening and very readable. Many aspects of the problem are treated: the villain’s denials, the backup he gets from members of his quasi-fraternity, current girlfriend and parents, the breakthroughs when a former girlfriend comes forward, and when the truth is winkled out of some frat members, the legal issues, the campus judicial process, etc. The latter is much stricter than the one now in place. Something halfway between it and what now prevails would be fairer than both, IMO.

    A Kindle version is $8 (used hardback: $1.63) at http://goo.gl/qSC24P. (It’s a shorty link because this site won’t accept Amazon’s too-long URLs.)

    The publisher’s blurb says:

    Elizabeth has grown into a brilliant and compassionate young woman, if a little spoiled and na?ve. But when a senior tennis star named Jimmy date rapes her during freshman orientation, Elizabeth’s once-tranquil life is shattered. Humiliated and guilt-ridden, she slips numbly through her first months of college before reporting the assault?a decision that launches her on a crusade to bring Jimmy to justice, one way or another.

    In this powerful and affecting novel, Corman explores the devastating repercussions?both private and public?of campus date rape and the double standards surrounding sexuality for young men and women.

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