There’s no better option than reforming campus trials
WASHINGTON, DC – “There’s no Harvey Weinstein in the dorm room.”
Thus began journalist Emily Yoffe’s argument for why the recent downfall of powerful men in entertainment and politics should not serve as a template for addressing sexual-misconduct claims on college campuses.
Fresh off her three-part series in The Atlantic on the contempt for due process, “junk science” and likely racial bias in campus Title IX proceedings, Yoffe told a Cato Institute audience Tuesday that she also has “a lot of qualms” about the justice system taking a greater role in handling campus rape claims.
Many cases “don’t even rise to a criminal matter,” the cost of hiring a defense attorney is out of reach for many families, and local prosecutors are under the same pressures as Title IX officials and college presidents, Yoffe said.
Her proposed fix is incremental and unsatisfying: a culture shift in how people define sexual misconduct and how campus officials treat accusers, whose allegations have been declared unquestionable by the Title IX industry.
Do we have to say ‘May I flirt with you?’
Yoffe found a sympathetic interviewer in Washington Post columnist Ruth Marcus as they discussed the parallels and departures between workplace and campus sexual misconduct.
Powerful figures in the media and politics are either issuing “various unconvincing denials” in response to multiple accusers and corroborating reporting, or they are responding with a “little caveat” that they don’t remember the alleged incidents the same way, Yoffe said.
She faulted Kentucky Attorney General Andy Beshear for recently telling a college crowd that 98 percent of accusations are “accurate” – a dubious statistic that’s “a little scary” coming from a state’s top law enforcement official. “You can’t just say ‘one side is telling the truth,'” Yoffe said.
Asked about the oft-cited statistic that one in five women will be sexually assaulted in college, Yoffe dismissed it for the same “definitional problems”: Researchers consider “grinding on a dance floor” to be misconduct, they conflate drunkenness with incapacitation, and they ask conditional questions (“might have happened”).
But Yoffe agreed with such advocates that making an accusation is the beginning of a “grueling, miserable process” for any accuser, most likely a woman: She’ll have to tell her story repeatedly and she’ll lose her privacy.
The better way to treat allegations without merit is to call them “wrongful” rather than “false,” according to Yoffe. She cited Harvard Law School research on the expansion of the campus definition of “sexual violence,” which includes even flirtation.
“How do you know if flirtation is ‘welcome’?” Yoffe said to laughs: “Do you say, ‘may I flirt with you?'”
Don’t expect ‘guardian angels’ when you pass out
Informed by interviewer Marcus that campuses have even more alcohol than newsrooms, Yoffe said she broached the subject “unintentionally” in her previous role as advice columnist for Slate.
An editor inaccurately titled her column about recent school-rape cases “College women, stop getting drunk,” which provoked a barrage of angry tweets “within seconds,” Yoffe said. She said her argument is no different than the commonsense advice given women when they use the restroom at a restaurant: Bring your purse with you to be safe.
“We can’t even have that conversation” about alcohol and rape on campus, she said: Schools won’t crack down on illicit alcohol consumption because “nobody would be coming to a school where you couldn’t have alcohol at all,” or else they would drink off campus where the school can’t reach them.
A former Obama administration aide in the audience, her voice trembling, told Yoffe she was “confused and distressed” about the restaurant analogy. The writer responded that students shouldn’t expect “guardian angels” to surround them when they pass out drunk, especially when “it’s kind of a point of pride” in college to vomit and pass out drunk.
Yoffe related that people in her neighborhood used to leave their doors unlocked until a string of break-ins led police to tell neighbors to knock it off. “Who did the crime? The thief. But everyone can do things to reduce their chances of being a victim of crime.”
We aren’t ‘cherry-picking one-offs’
Yoffe had harsh words both for the Obama administration’s characterization of the campus climate before its 2011 Title IX regulatory guidance, and the paranoia the administration set off with that guidance.
College women have been writing alleged rapists’ names on bathroom walls for decades, and “trauma” was being taken into account in campus rape investigations in the 1980s, she said, citing a book by Harvard professor Harry Lewis.
The Obama administration didn’t bother including civil libertarians and defense lawyers in its plans for a Title IX overhaul, according to Yoffe: “The people who were around the table were the activists.” One of them left the administration for the pro-accuser group Know Your IX, showing the “cross-currents between the advocacy community” and the White House, she told an audience member.
In response to the administration’s rewrite of Title IX mandates, portrayed as a clarification of existing law, “the schools went off and running because they were in terror of being investigated,” with only one penalty available: full federal defunding.
Narrow investigations turned into “massive class-action investigations” that took years, Yoffe said. When the list of schools under Title IX investigation was made public – something never imposed for, say, race-discrimination cases – it was a “terrible reputational blow” for schools that “live and die by tuition-paying students.”
Proceedings turned into “absolute Soviet-style star chamber kangaroo court” adjudications, with accused students denied the opportunity to even indirectly question witnesses and be given allegations in writing.
She said the day that Education Secretary Betsy DeVos* met with both accusers and accused students, a court reinstated an expelled college student whose partner claimed two years after their consensual encounter that it wasn’t consensual, and whose college never gave him the accusations.
“That’s happened all over the country,” but those who write about these cases are accused of “cherry-picking one-offs,” Yoffe said incredulously. “There are a whole lot of cherries.”
The perils of prosecutors
Both rape-victim groups and due-process defenders should grapple more with the toll that adjudications in any forum – college or court – takes on both parties, according to Yoffe.
Rape victims she has interviewed say they “don’t want to be the brave victim” by coming forward, and lowering the bar on what’s considered misconduct is “encouraging cases that shouldn’t be brought forth,” she said.
But groups like the Foundation for Individual Rights in Education should reconsider pushing for accusations to be heard in criminal courts, Yoffe said: Prosecutors play hardball, too.
Relating a conversation with a lawyer who has handled both campus and court cases on sexual misconduct, Yoffe paraphrased the lawyer: I don’t really blame the prosecutor – you have a victim who’s crying and convincing … and then on the stand the whole thing falls apart.
Another prosecutor got a second chance at a student who had been acquitted when his college, Hobart and William Smith, ran its own investigation and blocked his father, a lawyer, from aiding him. The student instead chose his “sophomore younger sister” as his adviser, and the college gave the hearing transcript to the prosecutor, Yoffe said.
She also questioned how helpful it is for colleges to provide accused students with lawyers, as do Columbia and Harvard Law: “Do you want the attorney the school provides for you?”
Asked by Peter Kirsanow, a member of the U.S. Commission on Civil Rights, why no one had brought a Supreme Court case to challenge the “extrajudicial” system of campus investigations, Yoffe said that campus law experts have told her “they’re waiting for a case.”
The problem is that no family wants their son to be the plaintiff, she added. Marcus added that both Title IX and Title VII have been interpreted by courts to cover sexual harassment, so Congress would have to change them: “Good luck with that.”
Expose the Title IX training
It’s better to reform campus investigations, according to Yoffe. She wants more “prosecutorial discretion” for Title IX officers to pass on cases where factual allegations don’t rise to the level of sexual assault, but to provide other resources to those accusers.
The Trump administration should mandate a “clear and convincing” evidence standard, the threshold used by many elite schools before the Obama guidance, according to Yoffe. The latter’s 50 percent “and a feather” standard is too weak when the consequence is ending someone’s education and professional prospects, and campuses are already “so devoid of due process.”
The incentives are also twisted when it comes to on-campus statistics, she said: “I have three pages of quotes from college administrators” who say they are “desperately trying to increase our number” of expulsions for sexual misconduct. Some administrators even brag about how many reported assaults they have, perhaps inflated by overbroad definitions.
The best disinfectant is sunlight, Yoffe said: Secretary DeVos should force colleges to make their Title IX training materials public.
These “really pernicious” recommendations and assumptions in campus trials – including that males with good grades are likely to be perpetrators, and that “almost all accusers are telling the truth” – have thus far only been revealed in litigation, she said.
IMAGE: Cato Institute