Thursday, October 16, 2014

Anti-due process activists at Harvard respond to law professors' landmark letter attacking the school's sexual misconduct policy

Yesterday, a letter was published in the Boston Globe signed by 28 Harvard law professors voicing strong objections to the school's one-sided, feminist-inspired sexual misconduct policies. Among other things the professors said this: "Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." We wrote about it here.

This letter is the single most important statement to date about American colleges' hostility to due process when it comes to men accused of sexual misconduct. Among the signers of the letter are esteemed criminal law expert Alan Dershowitz, Obama mentor Charles Ogletree, and Prof. Elizabeth Bartholet, who directs Harvard's Child Advocacy Program. Prof. Dershowitz said Harvard's policy (which is no different than hundreds of other schools' policies) is "political correctness run amok." Prof. Bartholet told a news outlet that Harvard's new policy comes "very very close" to California's new "yes means yes" law, requiring affirmative consent for sex on campus. She said the new policy is unfair to the accused and "degrading and demeaning for women" because it assumes women need special protection. Given the low standard of proof, Bartholet said that men could face unfair disciplinary processes that deny them representation and that result in their exclusion from any law school or from joining the Bar after graduation. She added: "What the student says [at Harvard] might be used in a related and subsequent criminal proceeding against him. But if the student doesn't speak that could be used against him in the disciplinary proceeding."

While it is too early to say, the letter may be a turning point in the public discourse on the subject. John Banzhaf, a law professor at George Washington University, said: "I think there already is growing a public backlash against it, and like any pendulum, once you go past the bottom and you start going in the other direction, it does begin to slow down. And I think it's beginning to slow down." (Prof. Banzhaf has previously pointed out -- echoing something we wrote about here -- that illegals crossing the border have more rights than college men accused of rape. Banzhaf also says that "the policies of many if not most public universities would be found unconstitutional if challenged in court, and administrators might even be found liable for damages.") Anne Neal, president of the American Council of Trustees and Alumni, said: "I think these professors are properly saying that we cannot allow our institutions to be taken down an Orwellian path where the Constitution takes a back seat to other considerations."

It would scarcely be possible to be more critical of the school's policies than the professors' letter. While it may be easy to dismiss "men's rights advocates" or so-called "conservative" commentators when they make precisely the same points, it is far more difficult to respond to a very serious attack on Harvard's policies by so many esteemed Harvard law professors.

At the Feminism subreddit, a post titled "Rape apologist professors strike back at Harward" [sic] has been mostly downvoted, thankfully. The person who authored that post wrote this comment under it, also downvoted: ". . . you have to consider the bigger picture. When one in five students are sexually assaulted on campus, there needs to be a stern reaction." That comment, of course, echoes the sentiments of the lynch mob at the hanging trees of the Old South where the motivating impulse was that due process could not adequately respond to rape by black men and, as one defender of lynchings put it, lynchings “are extraordinary measures demanded by extraordinary occasions.” And it is a good sign that the following comment under that hateful post at the Feminism subreddit was upvoted: "There needs to be proof as well. I believe that every single rapist should be punished to the full extent of the law, but [I] also believe that due process is absolutely fundamental to living in a free society, and if people can [accuse] others of something and ruin their life without requiring evidence then its a broken system and one that doesn't give equality to women or men."

Perhaps the real test will be when Jezebel and Salon respond to the professors' letter -- I don't see that either has written about it yet. It must be very difficult for their editors to decide what to say since the professors' letter bucks the narratives both outlets have consistently bleated. Until they respond, their readers will need to content themselves with the usual fare those outlets offer -- right now, the top story at Jezebel is "What Women Really Think of Sex With a Micro Dick."

While none of the usual suspects have responded, the anti-due process advocates at Harvard have weighed in -- and they've done so exactly as we expected: with a series of emotionally charged straw men and non sequiturs. And as expected, writer Tyler Kingkade gives their sentiments sympathetic treatment.

While the professors at Harvard's law school who signed the letter are among the most esteemed legal scholars in America, to counter their arguments -- which, by any measure, are irrefutable -- Tyler Kingkade trots out something called "Our Harvard Can Do Better," an organization whose Website doesn't even bother to explain who or what it is. Kingkade asserts, without substantiation, that they are "a group of student activists and sexual assault victims."

"Our Harvard Can Do Better" off-handedly declares that the professors' letter "reveal[s] their disconnect from the reality" of a "power imbalance." Then the group formally responds to the professors' letter with this statement (our comments are interspersed):
Harvard’s sexual harassment policy is not criminal justice law. The newly-created Office of Dispute Resolution (ODR) is not part of the criminal justice system. None of the possible outcomes of an [Office of Dispute Resolution] complaint hold anywhere near the severity or longevity of any criminal justice outcome. [COTWA: That "Our Harvard Can Do Better" thinks this is a legitimate justification for hostility to due process is both chilling and laughable] As an anti-discrimination framework, the Title IX complaint process is meant to decide which of two equally situated parties on campus requires additional support from the school to remain on equal educational footing. [COTWA: Except only one student will suffer a potentially life-altering punishment if the school gets it wrong -- and as the professors noted, the system is rigged against the accused] The spirit of Title IX is to protect every member of an educational environment from violent and discriminatory conduct -- sexual and gender based harassment -- that poses a serious threat to their safety and ability to learn. [COTWA: This, of course, has nothing to do with the professors' valid criticisms
By implying Harvard should disregard its legal obligation to protect all of its students and ensure a safe and anti-discriminatory environment, [COTWA: The professors made no such implication, of course, but it's not surprising that "Our Harvard Can Do Better" recharacterizes the professors' arguments in order to attack them] this piece displays a callous lack of understanding of sexual violence and its effect on survivors in educational institutions. [COTWA: Cue the violins. The professors are "callous" for doing nothing more than calling for due process, since rape accusers -- which "Our Harvard Can Do Better" calls "survivors" -- suffer from their ordeals. The irrationality is breathtaking.]
And so it begins. We suspect that the usual suspects are seething over the professors' letter and will pull out the big guns in an attempt to trivialize it. Why do I suspect that? Because we are living in a society where, earlier this year, an administrator at a major college (Dartmouth) openly said this about students (almost exclusively male) who are merely accused of sex offenses: "Why could we not expel a student based on an allegation?" And I have not heard a single feminist condemn it. Not one.

I am hoping the professors' letter will spark a real dialogue, as opposed to a hate-filled monologue, on this critical issue. It's tough to do an un-PC thing. These esteemed professors are to be lauded for the courage to say what is true, instead of what is popular and politically correct. We hope the students and faculty at Harvard, and at colleges across America, will follow suit.