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

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

AALSRobby Soave / ReasonIt 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."

Photo Credit: Robby Soave

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  • Crusty Juggler||

    Grappling with Campus Rape

    The moment when the WWE's "attitude era" went too far.

  • Swiss Servator||

    JUST YOU MAKE SURE YOU LEAVE THE IRON SHEIKH AND JUNKYARD DOG OUT OF THIS!

    /Old school WWF

  • WTF||

    Chief Jay Strongbow approves.

  • MarkLastname||

    Leave Vince McMahon out of this.

  • Enjoy Every Sandwich||

    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.

    False consciousnesses! Duh!

  • Rich||

    "It's pronounced 'Jeh-KNEE'."

  • ||

    "It's pronounced Ja-nay and Eliza-bith.'

  • commodious spittoon||

  • GILMORE™||

    Apropos = White People Deconstructing the Multiple Problematics of Forrest Gump

    I think the self-parody/meta-joke has more actual meat on the bones. (i.e. "playing "Gotcha" as a form of modern social-virtue-signalling wankery"). tho im not sure how intentional it is.

  • Swiss Servator||

    WHY STEVE SMITH NOT CALLED TO PANEL?!

  • Notorious UGCC||

    "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."

    I emphasized the key point - it's all fun and games imposing bad laws and regulations on other people, but now that it's come to bite *them* in the ass, they're all like, "whoa there, maybe this isn't a good idea after all!"

  • A Cynic's Guide to Zen||

    Think before you ink.

  • commodious spittoon||

    Sejal Singh, a recent graduate of Columbia University

    Sejal Singh: a woman; ethnic minority; straight, jet-black hair; Columbia graduate; Title IX apologist.

    She's the anti-Soave.

  • dan park||

    There might be a little Emma-jealousy among recent Columbia grads. If privileged young women can portray themselves as unthinkably marvellous *and* unthinkably oppressed, they get to make something like a religion of themselves, with the matress-carrying bit looking a lot like Jesus dragging his cross at Calvary. White girls writing 'Not asking for it' on their boobs are mere acolytes.

    Regarding Title X's provisions (Thou shalt first excommunicate the Accused, who may, beseeching, then Supplicate the Powers in humility), it is making much of the fact that there are no witnesses to most rapes. Mary P. Koss is the towering intellect advancing the drunk driver mixed-metaphored analogy (drunken penis runs over drunken, ambulatory vagina), with God or Gaia or Xenu or Patriarchy having put a penis in a car. A physicist friend in Seoul suggested to me that quantum mechanics, ie Schrodinger's Cat, is a better analogy, in that you can't observe (witness) a particle's state, position etc., and that like the feminist argument that the victim suffers further upon revealing the crime against her, is like the confined cat suffering the further indignity of dying when it is finally observed. Feminist arguments that it is always an act of blaming the victim when considering evidence, that her position cannot be *unknown* even as it wasn't observed, that her claims are unimpeachable ahead of time, is not just unsound logically, but stinks of religious certitude.

  • MarkLastname||

    I think it's more of a feminist inversion of machismo. Macho guys brag to each other about how tough they are, how much they can lift, how they can rebuilt a GTO from scratch in one afternoon; all about how strong, capable, tough, etc., usually to the point of absurdity For feminist women, on the other hand, it's about how much they've 'been through.' The goal is to be the most victimized and oppressed of all of them. They will sit around in coffee shops trying to one-up each other with unverified stories of what their ex-boyfriends did to them.

    A while ago I had a passing interest in criminal psychology, and I would read the reviews of books on amazon about sociopathy. Ya know what 80% of the reviews are? Women claiming that upon reading the book they realized their ex-boyfriend/husband was a psychopath and that their relationship was the equivalent of her being held captive in North Korea for 2 years. The sheer enthusiasm with which so many of these women recharacterize mundane middle class American life into something like living as a 19th century slave or something from the movie Saw was a psychological curiosity in itself.

  • R C Dean||

    a woman; ethnic minority; . . . Columbia graduate;

    So that's like, three handicaps. She must score well on the intersectionality grid.

  • Notorious UGCC||

    burn!

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  • GILMORE™||

    "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"

    I think the point which should have been made.... is that pretending that "dominant white male power" is the underlying root-cause of all sexual assault...is so incredibly stupid that people should be embarrassed to even suggest such an idea.

    It shouldn't be taken any more seriously than claims that one's critics are possessed by 'The Devil'.

    I appreciate that some people believe we are surrounded by the omni-present power of Racist Patriarchy, which functions like an evil puppet-master, dictating the behavior of the 'free market' and punishing anyone who dares challenge its pernicious influence.

    However, i missed the part where sane people are supposed to *accept that*

    The argument is facile and stupid *regardless* of the Identity of her critics, or of the identities of the people being charged with Rape. Pretending that the "white male power"-boogeyman argument might actually have some merit under different circumstances grants it legitimacy it doesn't deserve. Its choosing to deflect rather than to confront the fundamental irrationality of their position.

  • commodious spittoon||

    Privilege is the phlogiston of social science.

  • Marshal||

    CUNY’s Michelle Anderson struck a less pessimistic note, but only because she was satisfied that the courts "are appropriately correcting overreach by campuses."

    Meanwhile people's lives are being ruined. Wake the F up people, you're years late and miles behind. Get off your asses.

    It's cute a few law profs think railroading is wrong. What are they doing about it and where the hell is everyone else?

  • Catatafish & Woodchips||

    "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."

    Hey, it's a tough market out there. You didn't actually expect her to say "my job has no purpose" did you?

  • Garth Bigelow||

    "Feminists don’t want [mandatory minimums]," she said.
    "We want them slow roasted on a spit," she added.

  • Garth Bigelow||

    Ever notice that all feminists seem to think all feminists are of one opinion on the subject they are talking about?

  • MarkLastname||

    Except when you point out how bigoted and idiotic something feminists believe is, then you're a douche for not recognizing that feminism is "not a monolith."

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    my neighbor's half-sister makes $83 every hour on the computer . She has been without a job for 9 months but last month her payment was $17900 just working on the computer for a few hours. why not try this out

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  • TimothyLane||

    Title IX has been used by femocrat activists (and government officials either in sympathy with them or too cowardly to stand up to them) as a means of their war on males. They use it to get rid of male sports so that the number of females active in sports will match the number of males, and they use it to encourage schools to engage in rape witch-hunts. Most colleges need little encouragement anyway, being dominated by liberals.

  • retiredfire||

    How is the private institution of a college or university meting out any kind of legal justice anything but vigilantism?
    There is a legal system that is supposed to handle violations of the law. Anything that legislators have determined to be a public concern, to the point they have passed legislation making it a crime, then it is ONLY through the "legal system", not some ad-hoc group of students,faculty and administrators, for the consequences to be determined.

  • MarkLastname||

    Here's an idea: let's cobble together a list of progressive politicians who, by the flimsiest of standards, we can conclude are likely guilty of some kind of sexual assault or other felony (Bill Clinton surely meets Kangaroo Court standards). Then, we start a move to boycott all the major restaurant chains, grocery stores, cable companies, etc. until they all refuse to provide service to these individuals as an extrajudicial punishment for their 'crimes.' Then they'll be in a double bind: if they sue and manage to make it illegal for private institutions to discriminate based on perceived criminality, then universities wouldn't be able to either.

  • endylee1547||

    my neighbor's half-sister makes $83 every hour on the computer . She has been without a job for 9 months but last month her payment was $17900 just working on the computer for a few hours. why not try this out

    +++++++++++++++++ www.Wage90.Com

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