Act biased – just don’t show it
It’s easy to see why the author of this brazen Chronicle of Higher Education essay refused to use a real name.
This “midlevel administrator who oversees sexual-misconduct complaints at a liberal-arts college in the East,” identified pseudonymously as “Helen Evans,” would quickly be swamped with complaints by accused students, their families and their lawyers if she identified herself.
She’d probably be named as a defendant in a lawsuit, if she’s not already one.
Evans wrote a letter to a fictional “colleague” just starting work overseeing sexual-assault investigations on that person’s campus, sharing her thoughts as a “veteran” of these investigations.
It reinforces the worst fears of accused students, due-process advocates and writers who focus on the Star Chambers rampant in Title IX proceedings.
The letter has the feel of Screwtape instructing Wormwood in The Screwtape Letters, but the competent and professional picture Evans paints of Title IX proceedings is less believable than a senior demon instructing a junior demon how to tempt humans away from God.
It revels in victimhood while suggesting that accused students (usually males) are treated fairly in every respect:
There will be no rewards of any kind, and the blistering assaults on your institution and on you personally — however unfounded — will be unrelenting. …
When, for example, both the accused and the accuser are students in good standing, they have equal rights to campus resources — until and unless an evidence-based outcome determines otherwise. … You will be accused of failing to understand systemic gender oppression. You will give up trying to make this point.
Yet Evans goes on to repeatedly and bizarrely suggest that every accused student had it coming to them: “Complainants [accusers] need you to take responsibility for the harm they experienced. … Complainants need you to be their champion.”
This “veteran” of Title IX proceedings all but tells her junior colleague to proceed as if the accused student is responsible for one or more violations, but just not say so out loud:
[Accusers] need the college — and you as its representative — to unequivocally state upon receipt of the allegations, “I believe you. I believe that what happened was unacceptable and a violation of our policy, and we will bring you justice.” …
However, you cannot say them — unless and until that is the official finding of a thorough, evidence-based investigation. Any expression of support will be seen as bias. It will compromise the integrity of the inquiry and consign any resulting determination to an appeal and possibly a lawsuit. …
Regardless of your sincerity, you will see on the faces of the complainants that they need you and the institution to fight for them.
False equivalence through and through
Then we get to what Evans really thinks of accused students. Most of them fall somewhere between “entitled toxic masculinity and inept adolescent”:
All are capable of causing harm. Until the investigation is finished, you will not know whether that harm was intentional or unintentional, or whether it constitutes a violation of campus policies.
Is there a chance the accused student didn’t cause harm at all? That an accuser is a vengeful sex partner, that a boyfriend made the allegation out of jealousy, that an administrator invented a victim out of whole cloth, that an ideologue is trying to make policy changes by reinterpreting clumsy but routine sexual encounters as sexual assault?
Evans argues against submitting allegations to police because of “the importance of inviting survivors to identify their own needs and make their own choices, rebuilding the sense of control that sexual violence can demolish.” Again – at this point, no determination has been made. Evans simply assumes accused students are guilty of something.
She creates false equivalence between the criticisms of accusers and accused, ignoring that the deck has been stacked against accused students by government fiat since 2011 and that colleges face much worse PR for perceived failures with accusers.
Consider this grossly simplified hypothetical:
At various points, barely recognizable versions of your cases will be publicly disclosed by accusers or the accused, both of whom will direct their fury at the institution and at you for whatever outcome was reached or the arduous process of reaching it. Student protests may result.
Um, “student protests may result” when a college doesn’t immediately ban an accused student from campus, suspend or expel that person. (Look at what happened when Columbia completely exonerated the student accused by Mattress Girl.) If Evans can point to student protests against unfair treatment of accused students, I’d love to hear these few and fleeting anecdotes.
The pressure on colleges, while the Department of Education is soliciting comments for the formal rulemaking that the Obama administration ignored, is still overwhelmingly one-sided. Accusers and their powerful allies – celebrities and White House-eyeing senators among them – control the optics and drive the decisionmaking.
It is deranged to suggest that accused students have any power outside a courtroom, much less any power that is effective when it’s needed (particularly on the verge of graduation).
And this fanciful scenario bears little resemblance to reality:
You will try to take solace in the fact that every aspect of your investigation has been thoroughly documented. [Except when it’s not.] Should this incident result in a lawsuit — with your records subpoenaed and made public [if the investigator even bothered to create a paper trail] — you will be vindicated, and the outcome will be understood and upheld.
As posed by Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, is Evans remotely aware of the dozens of court orders against colleges for depriving accused students of fair proceedings?
Likewise, surely not *all* TIX adjudications will be "vindicated" & "upheld" in court? What does the adm'r say of the dozens of cases since the Dear Colleague letter where courts haven't "upheld" TIX inquiries? pic.twitter.com/InPPu6iE0t
— KC Johnson (@kcjohnson9) April 4, 2018
Evans is right about a couple things: “Most respondents [accused] are cut off from community support,” and nonwhite students fear that “your process will be racially biased and … the accusation itself will confirm societal stereotypes they may have been battling all their lives.”
But the essay otherwise suggests that Evans doesn’t even realize her implicit bias against accused students. They cause “harm” whether or not that was intended. They are reducible to “toxic masculinity” or “inept adolescents.” Their accusers are invariably “survivors,” even when facts prove them wrong or reveal their own wrongdoing.
Every lawyer representing an accused student should point to this essay when challenging a school’s action against their clients.
IMAGE: Kaspars Grinvalds/Shutterstock