CHE article: Feminist law professor for due process under Title IX

[Hibush]

This is a juicy long-read article in CHE.   (paywalled)
(non-paywalled, for now, from Twitter)

The article highlights four influential law professors who have a strong commitment to due process and are concerned that the absence of it in Title IX investigations in recent years is a threat to the academic community. They all come from a base of wanting to minimize sexual assault and harrassment on campus, so they have common ground with the Federal administrators who wrote the influential "Dear Colleague" letter changing Title IX enforcement as well as the many administrators and advocates who are skipping due process.

There are some great lines for expressing the absurditiy with which the interviewees see some of the actions at universities:
"encouraging people to regard their intimate relations through the lens of the sex bureaucracy. "
"the sex bureaucracy pivoted from punishing sexual violence to imposing a normative vision of ideal sex, to which students are held administratively accountable"

One optimistic message. The Harvard Law faculty developed a Title IX investigation procedure at universities that is fair without using some of the problematic components of criminal procedure. The procedures at 200+ other universities have been struck down by courts. The group covered in the article is really smart.

There is a lot more in the article, much of which points to solutions rather than just a rehash of much-discussed problems.

:mod edit: links for better reader access

[pigou]

Thanks for sharing the article! I've seen Gersen on a panel before and she stood out as an incredibly insightful voice. Her background as a prosecutor realizing that we had gone "too far" is, I think, what helps her make such persuasive arguments.

They all come from a base of wanting to minimize sexual assault and harrassment on campus, so they have common ground with the Federal administrators who wrote the influential "Dear Colleague" letter changing Title IX enforcement as well as the many administrators and advocates who are skipping due process.

I don't think there's anyone who is in favor of more sexual assault and harassment?!

In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

That's pretty incredible, if not surprising.

[marshwiggle]

Thanks for sharing the article! I've seen Gersen on a panel before and she stood out as an incredibly insightful voice. Her background as a prosecutor realizing that we had gone "too far" is, I think, what helps her make such persuasive arguments.

They all come from a base of wanting to minimize sexual assault and harrassment on campus, so they have common ground with the Federal administrators who wrote the influential "Dear Colleague" letter changing Title IX enforcement as well as the many administrators and advocates who are skipping due process.

I don't think there's anyone who is in favor of more sexual assault and harassment?!

In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

That's pretty incredible, if not surprising.

ARE YOU A LOOKING-LIKE-A-RAPIST APOLOGIST????

[Hibush]

ARE YOU A LOOKING-LIKE-A-RAPIST APOLOGIST????

I  believe you are critiquing the typical discourse on this subject.

[ciao_yall]

Okay, how are these even possible?

In addition to inciting a general bureaucratization of intimate life, such expansive constructions of wrongdoing tend to produce a host of other injustices. "We disfavor broad bans because it allows the decision maker too much discretion to make a determination of who to target on the basis of whatever criteria they might bring to bear — including race," Gersen said. Recently, for instance, a black, autistic student with cerebral palsy was charged and found responsible for a Title IX violation for asking a woman to give him a fist bump. In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

These sound like stories told on Fox News to explain why colleges and universities should be defunded because... snowflakes.

[marshwiggle]

Okay, how are these even possible?

In addition to inciting a general bureaucratization of intimate life, such expansive constructions of wrongdoing tend to produce a host of other injustices. "We disfavor broad bans because it allows the decision maker too much discretion to make a determination of who to target on the basis of whatever criteria they might bring to bear — including race," Gersen said. Recently, for instance, a black, autistic student with cerebral palsy was charged and found responsible for a Title IX violation for asking a woman to give him a fist bump. In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

These sound like stories told on Fox News to explain why colleges and universities should be defunded because... snowflakes.

I'm not sure I get your point. Are you suggesting a Harvard law professor made this up? Or that this was a mild bureaucratic overstep, rather than an idiotic authoritarian crusade?

[ciao_yall]

Okay, how are these even possible?

In addition to inciting a general bureaucratization of intimate life, such expansive constructions of wrongdoing tend to produce a host of other injustices. "We disfavor broad bans because it allows the decision maker too much discretion to make a determination of who to target on the basis of whatever criteria they might bring to bear — including race," Gersen said. Recently, for instance, a black, autistic student with cerebral palsy was charged and found responsible for a Title IX violation for asking a woman to give him a fist bump. In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

These sound like stories told on Fox News to explain why colleges and universities should be defunded because... snowflakes.

I'm not sure I get your point. Are you suggesting a Harvard law professor made this up? Or that this was a mild bureaucratic overstep, rather than an idiotic authoritarian crusade?

They sound completely ridiculous. I can't imagine they are true, still, I can't imagine someone making these up.

[pigou]

Gersen notes in the article that people considered a Title IX complaint against her, because questioning the evidentiary standards in a Title IX proceeding may itself create a hostile environment...

It's really not surprising that there are cases of people using Title IX as a weapon. When evidentiary standards are basically non-existing, it's a great way to let loose the bureaucracy on someone and they often have no way of defending themselves.

Here's an insane article of a Harvard Law professor who became a victim of the most insane paternity scam. Apparently, the women attempted to scam others with very similar stories... and yet, after they filed a Title IX complaint, he was barred from teaching. Even if you granted that their version of the story were not a scam and completely true, it'd be baffling where any Title IX violation could possibly have occurred -- hooking up with someone who has no affiliation with the university is not actually against the law, even for a professor: https://www.thecut.com/2019/07/bruce-hay-paternity-trap-maria-pia-shuman-mischa-haider.html

Zacks pushed Hay to ask for a paternity test, but Hay wouldn't have it. Not only did he trust Shuman, he felt it would have been insulting for a heterosexual cisgender man to question a professed lesbian as to whether she'd had sex with other men. He believed her when she said her sexual relationship with him was an exception. [...]

Hay had been keeping the university apprised of Shuman and Haider's actions, but Harvard's regulations governing Title IX investigations mean that Hay is still barred from teaching until investigators issue their findings. [...]

Hay says Shuman once told him they'd targeted him for signing an open letter in late 2014 calling for more due process in Harvard's Title IX proceedings. (Shuman denies ever saying this.)

[writingprof]

Okay, how are these even possible?

In addition to inciting a general bureaucratization of intimate life, such expansive constructions of wrongdoing tend to produce a host of other injustices. "We disfavor broad bans because it allows the decision maker too much discretion to make a determination of who to target on the basis of whatever criteria they might bring to bear — including race," Gersen said. Recently, for instance, a black, autistic student with cerebral palsy was charged and found responsible for a Title IX violation for asking a woman to give him a fist bump. In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

These sound like stories told on Fox News to explain why colleges and universities should be defunded because... snowflakes.

The rhetorical dishonesty of this post is so pronounced that it can be seen from space.  If these examples "sound like stories told on Fox News," then Fox News is supporting its policy preferences with facts and should be respected if not lauded.  Good for Fox.  To say that it is trying to get colleges defunded "because . . . snowflakes" is simply not true.  As these examples illustrate, it is trying to do so because of the wicked illiberalism and authoritarianism of the neo-Puritan Left. 

[marshwiggle]

Okay, how are these even possible?

In addition to inciting a general bureaucratization of intimate life, such expansive constructions of wrongdoing tend to produce a host of other injustices. "We disfavor broad bans because it allows the decision maker too much discretion to make a determination of who to target on the basis of whatever criteria they might bring to bear — including race," Gersen said. Recently, for instance, a black, autistic student with cerebral palsy was charged and found responsible for a Title IX violation for asking a woman to give him a fist bump. In a separate article on the Title IX system, Janet Halley describes an order placed on a student at an Oregon liberal arts college to avoid any contact with a female student because he reminded her of someone who had raped her, forcing him to quit his job and placing him in constant jeopardy of being punished for violating the order, despite no wrongdoing on his part even being alleged.

These sound like stories told on Fox News to explain why colleges and universities should be defunded because... snowflakes.

The rhetorical dishonesty of this post is so pronounced that it can be seen from space.  If these examples "sound like stories told on Fox News," then Fox News is supporting its policy preferences with facts and should be respected if not lauded.  Good for Fox.  To say that it is trying to get colleges defunded "because . . . snowflakes" is simply not true.  As these examples illustrate, it is trying to do so because of the wicked illiberalism and authoritarianism of the neo-Puritan Left.

And the best part is, the "privacy" provisions of the law prevent publicizing the names of the institutions and bureaucrats involved, so it's not possible to confirm any of it or make them face scrutiny. Kind of like "Gitmo for lefties".

[Hibush]

Before the "Dear Colleague" letter, Title IX offices were largely dealing with having comparable programming available to female students. Sexual harrassment was not that much of their business, and sexual assault was in a different division altogether. The radical shift triggered by that letter, making Title IX offices responsible for all those cases with vague rules and draconian punishments really disrupted a lot of administrations.

One of the other elements that changed drastically was that charges of sexual assault, which are rarely accompanied by physical evidence, went from requiring strong evidence and procedures that were really tough on the victim, to requiring only an allegation for conviction and no counterargument permitted.

That shift in procedure did not sit well with the feminist lawyers on my campus either. I thought they led a process similar to Harvard's in which the investigation is separated from the determination and the accused has a chance to make a case. Elsewhere, and initially on our campus, the process went from "sorry accuser, there is nothing we can do about your complaint" to "sorry accused, there is nothing we can do about your complaint." There is a middle ground.

If more schools can adopt a policy that find a route that offers a chance for justice for all parties, we will have fewer anecdotes about ridiculous judgements like the ones that triggered the exchanges in this thread.

[marshwiggle]

If more schools can adopt a policy that find a route that offers a chance for justice for all parties, we will have fewer anecdotes about ridiculous judgements like the ones that triggered the exchanges in this thread.

The problem is that this requires an implicit understanding that the distinction between "perpetrator" and "victim" is rarely 100%. Many crimes, especially those of a domestic nature, involve some agency on both sides. It may be 60/40, 75/25, or even 90/10, but it's often NOT 100/0.  The most vocal proponents of things like "believe all women" refuse to accept this.