This week, as part of the recognition of Sexual Assault Awareness Month, the Campus Accountability and Safety Act is being reintroduced in the Senate, with Sen. Claire McCaskill (D-Missouri) as the chief sponsor and Sen. Kirsten Gillibrand, the New York Democrat, as a leading co-sponsor. The bill, which toughens requirements for colleges to address and report student complaints of sexual violence, contains some positive provisions such as encouraging coordination between school investigators and law enforcement. But it does nothing to address the questions being raised by many, including feminists, about the current system of campus “justice.”
Many of the problems go back to the guidelines set down by the Obama administration six years ago for the enforcement of Title IX, the federal law that protects students from sex discrimination. Under these policies, outlined in a “Dear Colleague” letter from the Department of Education’s Office of Civil Rights in April 2011, complaints must be judged under a “preponderance of evidence” standard. That means the accused must be found “responsible” if the official or the panel evaluating the case believes it is even slightly more likely than not that the offense occurred. (Previously, schools had typically used a much higher “clear and convincing evidence” standard.)
Two newly published books make a devastating case against these policies, which the Senate bill would perpetuate.
“Unwanted Advances: Sexual Paranoia Comes to Campus” by Northwestern University professor and culture critic Laura Kipnis focuses on accusations against a (now former) Northwestern philosophy professor to look at a Title IX case in action and briefly reviews a number of other incidents. Kipnis, a left-wing feminist, concludes that the system is shockingly haphazard, with investigators arbitrarily deciding which allegations to credit and with the deck heavily stacked against the accused. While she deplores the injustice to the accused, usually men, Kipnis finds that female students are grievously ill-served by the current system in which they are encouraged to see themselves as “helpless prey” any time they feel ambivalence or regret about a sexual encounter.
“The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by CUNY Graduate Center history professor K.C. Johnson and noted legal scholar Stuart Taylor Jr., offers a more comprehensive analysis of the problems with the current system — a system which, as they document, has resulted in numerous lawsuits against universities by men who say they have been wrongfully expelled.
The lawsuits keep coming. Earlier this month, a male student sued Amherst College in Massachusetts for expelling him over an incident in which, under current campus sexual conduct norms, he would qualify as the victim: the accuser’s text messages to a friend confirmed that she initiated sexual contact, while the accused was so intoxicated he had little memory of what happened. In another case, a student is suing Yale University for punishing him even after his accuser admitted that her claim of being physically forced into sex was a lie.
Some advocates for the accused hope that President Donald Trump’s administration will curb these abuses — particularly since Education Secretary Betsy DeVos is a past donor to a group that defends the rights of accused students. Given the president’s checkered history on the issue of sexual misconduct, this administration is not exactly in an ideal position to reform federal policies in a direction that some will see as favorable to perpetrators. Nonetheless, this is an issue where liberal groups such as the American College of Trial Lawyers have common ground with conservatives. We need steps to restore some balance, ensuring that both students reporting sexual coercion and students who are accused are accorded dignity and respect.
Cathy Young is a contributing editor to Reason magazine.