For nearly six years now, a federal mandate has manhandled American colleges. The Department of Education’s 2011 guidance on campus sexual misconduct reinterpreted a gender parity law—Title IX of the Higher Education Act—to police colleges’ responses to reported sexual assaults. In so doing, the Obama administration’s edict kicked off a procedural regime that actually undermined gender parity: The procedures overwhelmingly favor a (typically female) complainant’s testimony and leave a (usually male) respondent in the lurch.
Stuart Taylor and KC Johnson trace the ideological and political roots of this harmful policy shift to a cultural interest in reparations to the second sex. In 2012, Taylor coauthored Mismatch, an influential analysis of the harmful consequences of affirmative action policies, which too often complicate the inequality they’re meant to correct. Terry Eastland, in reference to the deepened inequity Mismatch revealed, wrote in these pages that “the problem . . . is a system of preferences that perversely hurts the students it’s intended to help.” The same could be said now of Title IX guidance.
That 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR), which established the new campus practice, was issued the day President Obama would announce his reelection bid. This commitment to tearing down “campus rape culture” did invigorate the socially progressive base. But it would also perpetrate, in reverse, the same inequities 1972’s Title IX intended to outlaw. According to Johnson and Taylor, the guiding philosophy and legal precedent for the letter drew from the radical idea that all sex is essentially rape. The feminist lawyer Catharine MacKinnon had helped establish the crucial precedent that sexual harassment amounts to gender discrimination: “Politically, I call it rape whenever a woman has sex and feels violated.” Now in her dotage, MacKinnon sees her ideas enshrined in federal mandate. She also praises the work of young lawyers and activists who teach college-age women to “Know Your IX.”
Case studies—some of them proven hoaxes: false allegations against the Duke lacrosse team; the University of Virginia gang rape story Rolling Stone reluctantly retracted; Columbia’s Mattress Girl, whose story unraveled under investigation by journalist Cathy Young—endlessly prove that the federally ordained adjudication guidelines are equally unfriendly to facts and the rule of law. And many campuses’ loose and ever-looser definitions of what constitutes sexual misconduct—any intimate physical contact absent affirmative consent—cements a purely subjective framework:
[T]he federal government, joined by virtually all colleges and universities, has mounted a systematic attack on bedrock American principles including the presumption of innocence, access to exculpatory evidence, the right to cross-examine one’s accuser, and due process.
And yet, it’s not so difficult to see how those who pushed the pendulum too far in favor of (alleged) victims—friends of Catharine MacKinnon, guidance writers at the Office for Civil Rights—became convinced they had the right idea. The OCR stipulated a minimal “preponderance of evidence” standard to determine an accused student’s guilt: He need only be a hair’s breadth more likely guilty than innocent to face expulsion. Presuming his guilt naturally fits the premised context of a battle against the “rape culture,” an enemy in the eye of the beholder.
Not long ago, I asked a Dartmouth classmate if he was sold on the “rape culture” idea and whether he agreed that by pledging a fraternity he had been complicit in the objectification of women. I have to assume that he, aware of my skepticism, answered honestly—in the affirmative. His frat brothers, he said, regaled one another with stories, possibly exaggerated, describing nothing short of what the Missouri congressman Todd Akin once called “legitimate rape.” Is this casual testimony proof of a prevailing culture-sickness? To my friend, a self-professed feminist then as now, these stories didn’t seem so bad at the time (the pre-“Dear Colleague” letter years) because college is college and these things happen. It’s only in looking back, he explained, that he worries over what went on and whether he could have prevented any of it.
I heard the same concern from a former Title IX administrator at a conference I attended last year. She worries about the unfairness she was forced to dole out to accused students. A law school dean from one of the universities singled out as a hotbed of OCR overcorrection, she applauded the on-message affirmative-consent movement, from the White House on down, for instigating a cultural shift—what she termed reeducation. But she also confessed to ambivalence about a reform regime that had forced her to sacrifice just sentencing, suggesting that young women who initiate disingenuous sexual-assault complaints are swept up in a culture of sexual shame. Some initiate claims to protect their sexual innocence.
The sexual revolution of the 1960s and ’70s was supposed to have freed us from the behavioral codes today’s students ask their administrators to wield with such punishing force. That same ex-Title IX administrator—who, according to Johnson and Taylor, would have been made to serve “as not only detective and prosecutor but also judge and jury”—ventured that schools might give administrators the flexibility to invite nuanced testimony when a case involves feelings more than it offers in physical facts.
One accused student—one of many with scarily similar stories—was kicked out of school and barred from rematriculating after unadvisedly sleeping with two girls who happened to be good friends:
Months later, they jointly filed reports with the university, claiming that, because of their alcohol intake, their sex with Adams had been nonconsensual. . . . A university official told him he did not need a lawyer, while a single investigator-adjudicator oversaw his fate. Less than two weeks prior to the investigator-adjudicator’s decision came a highly publicized filing of Title IX complaints against the school in unrelated cases, as well as protests attacking the Title IX administrator—the same person who would decide Adams’ fate—as being soft on sexual assault.
Before he could bring himself to tell his parents what had happened, the student “was expelled, even though by then he had all the credits required for a degree. Adams’ parents learned of his dire situation from a phone call when he was hospitalized as suicidal after the decision against him.”
One wonders, uncomfortably, whether the real victims here are the unfairly accused who never see their charges and can’t cross-examine their accusers or bring witnesses to support their innocence. But there are also campus rape victims whose credibility is undermined by the criticism of a corrupt process: “By creating a growing contingent of wrongfully punished students—almost all of them male—the anti-due process policies decreed since 2011 by the federal government are already harming the intended beneficiaries: sexual assault victims.”
Another victim of the regime is the very sort of social progress that informed Title IX’s original intent: a feminism that acknowledged women’s agency and supported our promotion to equal actors. As readers of The Campus Rape Panic will find, the current Title IX regime victimizes jurisprudence premised on the presumption of innocence and the authority of factual evidence, against which a new regime made to satisfy current progressive ideology stands at odds. The system built to enact the extralegal (and culturally cathartic) guidance holds instead that we’re victims until proven liars. And a liar, absent due process, is impossible to unmask.
Alice B. Lloyd is a web producer at The Weekly Standard.
This post originally appeared on Weekly Standard