FIRE, an organization we all greatly admire, has blown to bits my post about the Duke sexual assault policy. I made the following statement in my post: "Assuming Duke's handbook has contractual significance . . . " Robert Shibley of FIRE explained to me that Duke has successfully argued that its handbook is not a contract.
Give me credit, I noted it was just an assumption, but it proved not to be true -- the student policy is apparently merely aspirational -- so I've taken down my post. That materially changes things.
I don't mind being wrong -- when you're wrong as much as I am, you become immune to it -- or being corrected by an organization like FIRE.
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20 comments:
I salute you on your willingness to retract your perceived error.
Why not give the issue a thorough rethink and post again tomorrow? It sounds like you would still have some valuable things to say about it.
SI -- thanks much. I'm wrong about a lot of things. Since my assumption was wrong, I'm going to have to defer to Mr. Shibley.
Archivist, Thats all great that youre wrong, and you correct things...But that does not address the fact that gender / Raunch feminist deviants asurp alot of power and sway over campus policy and politics by the strategic use of faulty and inflamatory misinformation.
I have heard from a reliable sourse that the gay male professors from Duke university that tried to sell their adopted son on the internet to other perverts..WERE SOME OF THE MOST STAUNCHEST GENDER FEMINISTS ON CAMPUS!!
I disagree with calling them perverts, if the reason for doing so is just because they were gay; although obviously selling your children is more than sufficient justification for that label, if that is indeed what happened.
Archivist: be that as it may, I hope that you'll stick to your guns if you feel that MRAs are overreacting to something. We sometimes need to be self-critical.
Regular reader/poster here.
I'm lost Archivist. Can you provide more detail for us what was/is at issue?
Anon at 5:35: It's inside baseball stuff about whether a college student handbook has contractual significance. I prepared a post that was premised on an assumption, which I stated up front, about the Duke U sexual assault policy. Mr. Shibley pointed out that this assumption had already been dealt with and Duke's policy has been deemed not contractual. And, if it's not contractual, it will be nearly impossible for a young man to challenge absurd or unreasonable applications of it in court.
Anon at 3:47: Thanks very much. Trust me, I will do that, and I don't care who it offends. I do greatly admire the other work FIRE does.
Archivist,
One of the things that impresses me about this site, and yourself, is your willingness to be open and upfront. If anything your ability to admit that you made an error (hey we all do that as human beings) has deepened my respect for you. Please keep up the good work you do here.
Archivist, I read your post and I read Shipley's retort. I am not sure why the Duke policy would not be a "contract," but if your assumption (which you did state was just that, an assumption) had been true, I found your argument persuasive. I'm not a lawyer, just a law student.
Nice to hear from these big shots, when they want to correct something. Too bad they don't back your work day in and day out.
Once Bitten, thanks much. I routinely correct myself, and modify my thinking, based on what I learn from other people, usually our readers. The biggest correction was that I did not realize how harmful rape lies were to actual victims when I started this (I remember telling Glenn Sacks on the phone one day how much I hated news stories emphasizing the harm to rape victims -- I found it strange he didn't seem to share my disgust on that point). Then after hearing from so many rape victims, I realized that it's true -- and that we're serving them, too.
Anon at 8:02: the college handbook/contract issue is one about which books can be, and have been, written. If the policy at issue had contractual significance, it could not be interpreted in an unreasonable way. Here's what most people, even attorneys don't understand: contracts routinely allow for discretion in the manner of some performance or other. That does not give the party with the discretion the unfettered right to behave unreasonably. It's for those terms that the law implies a duty of good faith and fair dealing. Moreover, the canons of contract construction dictate that, where possible, terms be read to give them a reaonable meaning and to avoid an absurd result. Nobody drafts a contract that is not susceptible to interpretation. Impossible. It's all very interesting, but as the FIRE guy points out, it's just hypothetical because Duke has obtained a deterimination that it's not a contract.
FIRE is a great resource. As is this blog.
Archivist - "it will be nearly impossible for a young man to challenge absurd or unreasonable applications of it in court."
My original concern WRT that new police was not that it would carry-over into a Court of Law, but rather that it was intended for use in a Kangaroo Court on campus. The whole bit about "perceived power imbalances creating a atmosphere of coercion" seemed just way to ambiguous for man-hating gender-feminists and their chivalrous white-knighting mangina allies not to abuse so as to judge more men guilty.
The whole sorid affair with Crystal Mangum was "sold" as an example of those privileged by the patriarchy abusing their relative "power" to take advantage of and rape a powerless and oppressed minority woman - all while expecting "the system" to cover for their criminal ways. It a tale told exactly as someone like Georgia Girl would have written - men of power, abusing that power over women, and having the mess white-washed for them.
It seemed to me that if it was not the intent of the new Duke police to attempt to "address" that imagined issue, then there was certainly the potential to abuse it in just that way.
"Here's what most people, even attorneys don't understand: contracts routinely allow for discretion in the manner of some performance or other."
It would be but a fools errand to try to debate contract law with you, and I would suppose that if it had been a matter of a contract between the school and the students, then what you were saying would have been correct, and the concerns many of us were expressing would not have ever come to fruition. And, yes, as a contractual matter it would have been a very complex issue, that only attorney with a good deal of experience can fully grasp how to work within.
Which brings up a question 9at least in my mind). My son will be considering colleges in the up-coming year. Are there student contract issue that you are aware of with any school about which parents of prospective students should ask a contract attorney about? Or, is their some clearing house of information regarding the legal issue with student contracts that you can point me to?
Archivist,
Thanks for your fair consideration of my response - it is more than is generally expected these days (and much better than anything Duke has been able to muster) and shows a lot of integrity. Kudos!
For the record, FIRE believes handbooks should be contracts between students and universities. And I was very interested to hear your perspective on how this policy would be interpreted in court if it was a contract.
However, even if Duke's handbook were a contract, FIRE would still object, because while an objective court might read Duke's policy the way you suggest (in fact, I would be horrified if it didn't) there is no evidence that Duke would. In fact, considering the procedural nightmares you rightly point out (aside from the consent nightmares), it seems unlikely that Duke is even trying for an objective process.
Most students, even if innocent or falsely accused, don't have the inclination or resources to sue their universities. They are likely to go through this horrendous process, be branded a date rapist or worse, and live under that stigma for the rest of their lives. Good luck getting a good job or entering a good graduate school with a sexual misconduct finding on your record.
Robert, I agree with you. When I first read your piece, I read into it my own experience, which has primarily been in the judicial system -- but, as a practical matter, that doesn't really work here. Your analysis is astute: we need to assess the policy language in the context of the gender politicized milieu of a school overrun with ideologues -- people who have little tolerance for supposedly dominant cultural groups, falsely accused or not. I don't doubt that there are many fair-minded people at Duke who would apply this policy language with reason and fairness, but there also seems to be an ideological cancer eating away at the core of the school, and that doesn't engender warm and fuzzy trust in its ability to deliver justice.
I agree that even if the language has contractual significance, a student likely would lack the financial resources, much less the time and inclination, to seek relief in the courts. This underscores a point I make frequently: our judicial process is often too expensive for individuals. It's as simple as that. This is all the more true for individuals who have crippling student loans hanging over their heads. I've had cases where, quite literally, small companies can't proceed due to the expense. Even large corporations and insurers are shell-shocked by legal fees. It's a significant problem that most folks don't understand at the outset of litigation, no matter how clearly we lay it out for them.
Accordingly, as a practical matter, your instincts are right on. But, hey, that shouldn't be surprising, given that you deal with these issues all the time -- and, very well, I might add.
I very much appreciate the seriousness, and the thoroughness, with which your organization approaches issues. You have one thing that most others who battle the forces of political correctness lack -- credibility. I was just touting your organization to someone I know earlier this week.
Keep up the great work. I am going to pass along to you, via email, some ideas that might prove helpful.
"The biggest correction was that I did not realize how harmful rape lies were to actual victims when I started this (I remember telling Glenn Sacks on the phone one day how much I hated news stories emphasizing the harm to rape victims"
Frankly, I find it annoying too. Why is it that any action can only be justified by how it will benefit women? The fact that innocent men will be spared is not reason enough in itself. So long as everything has to be justified according to what benefits women, we will always be behind the eight-ball and the plight of men will remain an afterthought.
When a serial rapist is brought to justice, the judge doesn't admonish the offender by saying 'your actions have made life more difficult for innocent men falsely accused of rape'. And frankly, nor should they. If men are abusing women, men's rights are not the issue in question.
I know I am perhaps too cynical for my own good at times, but I cannot help but think that men have spent decades playing the game of trying to be more understanding and empathetic towards women, and look where it has got us.
"The fact that innocent men will be spared is not reason enough in itself."
Frankly, it's enough for me. AsI say, I formerly disparaged any comment that suggested women are also being harmed, until I started actually hearing from rape victims who explained they join our work -- they hate the fact innocent men are being hurt, and they are ALSO being hurt. Not directly, not anywhere to the degree innocent men are being hurt. But its fair to say they are being hurt.
sl, thanks for the great comments, as usual.
All colleges have handbooks, some are contractual. Almost all are available on line. If you look at how they treat sexual assault, it is astounding how "progressive" (anti-male) they are. These provisions affect very few students, but they are eye opening. That's what I'd look for. And I'd probably send my kid to Ave Maria college in Florida or someplace where feminism is forbidden.
And let's not forget that women can be the targets of false accusations as well! I've seen it happen.
Protecting the innocent is always more important.
Good on ya, the net would be a better place if people wouldn't waste so much time defending positions they find out are wrong. Just explain why you thought what you did and why you don't anymore and move on. Just like you did. Good show of integrity here.
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