Friday, April 17, 2015

Know Your IX And Their Orwellian "Fair Process"

Know Your IX, an activist website dedicated to the elimination of due process in campus rape cases, on Wednesday published an open letter to university presidents on their Orwellian "fair process". This requires not a little deconstructing.
April 15, 2015

To University Presidents:

We, advocacy groups run by and fighting for student survivors of gender-based violence, write to you about the importance of fair process in university disciplinary systems.
By starting with the loaded word "survivors", they have already established their victimhood cred. No one needs to investigate this, no one needs to consider the prospect whether such charges are true; they just are, axiomatically.

That this is the opposite of "fair" should be immediately transparent.
We come to this issue out of concern for all student victims who have been betrayed and overlooked by their universities,
Like "Jackie"? Like Emma Sulkowicz?
deprived of the chance to learn and thrive by administrative inaction in the face of assault, harassment, and abuse. Our movement has made great strides in the last few years, but there is much more work to be done. Across the country, colleges and universities still fail to support survivors and take meaningful action against students who harm their classmates and communities.
I.e., have not been expelled from universities even despite rigged and secret mediations. How else do they explain Paul Nungesser?
We recognize that, now that schools have finally turned their attention to violence on campus, we are collectively tasked with answering the hard questions about how disciplinary procedures should work, given the particular challenges and opportunities of the campus context. And, we know first hand, the success of these procedures will depend on their fairness to all parties involved.
Their understanding of "fair" is, shall we say, slightly compromised? Because, how does one reconcile "fair" with the actions of their signatories, No Red Tape and Carry That Weight, who recently engaged in the puerile stunt of projecting the words "Columbia Protects Rapists" on a campus building, long after Sulkowicz had been exposed as a fraud? Which "rapists", particularly, were being "protected" by Columbia?
We are dedicated to ensuring fair process for four primary reasons:

First, many of the same procedures criticized by accused students hurt victims as well.
I would love to hear examples of this. That they may be criticized for exactly the opposite reasons as sexual assault advocates — i.e. a total lack of transparency, inability to retain legal counsel during proceedings, and lowered standards of proof for what is in fact a criminal felony— tells me the lack of examples here are rather noteworthy for their delusional failure to grapple with the situation as a whole.
Second, the authorities to which student victims turn for support in the wake of violence will only be effective if they are perceived as even-handed and legitimate by all.
And as Ms. Sulkowicz has already demonstrated, if the authorities reject those claims upon investigation, then what?  "Perceived" apparently isn't even enough; the only person for whom those perceptions matter, in this telling, is the accuser. Moreover, the secret nature of the proceedings means two things, both inimical to actual justice:
  1. Actual injustices will remain hidden from the light of day. Imagine a world in which Emma Sulkowicz's claims were true, and Columbia had ignored her. We have no way to establish specific failures of law or evidence because the cases are sealed from public inspection.
  2. Fraudulent charges cannot be aired to clear the name of the accused for exactly the same reason.
So "even-handed and legitimate" cannot apply to secret tribunals.
Third, we understand our fight as part of a broader struggle for equality in education, and worry that barebones procedural protections leave room for discrimination, including on the basis of race and class, in investigation and sanctioning.
I would think more of these claims if they, you know, were actually willing to expose the results of these procedures to the light of day. Throwing a spurious "because, racism!" charge in the middle of this makes me think this letter is more about sounding the right, politically correct notes than actually engaging in any meaningful search for justice — especially when making it easier to convict will inevitably result in more minorities getting convicted, because that's just the way it works. At best, this graf is na├»ve; at worst, it is hypocritical, delusional, and even monstrous.
Fourth, as students whose educational opportunities have been imperiled and limited by violence, we understand too well the harm of unjust deprivations of the right to learn.
You mean like the law school whiners who can't handle learning rape law?  Just wondering how expansive their definition of "imperiled and limited by violence" really was.
There is no conflict between, on the one hand, our recognition that student victims of violence continue to face unconscionable barriers and administrative indifference, and, on the other, our conviction that schools must provide procedural protections for all students.
The insistence upon the soundly rebutted "one in four" figure on their "Basics" page establishes the authors as serial liars. (When even Senator Kirsten Gillibrand, a liberal senator in a liberal state, is obliged to remove such calumny from her own website, it's a Sign.) It's a tipoff that an inflated sense of what constitutes "rape" and "violence" informed by hysterical moral panic that has only a tenuous connection to reality.
Some who advocate for accused students’ rights have done so at the cost of truth and justice, confusing student discipline for criminal law and perpetuating a myth that universities now favor alleged victims over respondents — a myth we affirmatively reject.
Does it really bear repeating that Title IX tribunals punish too much the innocent man wrongly convicted, while leaving the guilty one free to engage in predations elsewhere? What kind of perverse sense of justice countenances that? And why is it a "myth" that secret tribunals favor complainants over the rights of the accused? As the National Center for Higher Education Risk Management wrote last year,
We hate even more that in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what [the Office of Civil Rights] wants.
This is entirely consistent with the approach KYIX favors, namely, that every person complaining is a "victim" and a "survivor". Moreover, "Jackie" and Sulkowicz are not rare; NCHERM mentions "complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen."
We can and must value procedural protections for both parties without losing sight of the mistreatment of campus survivors, and the very long way we have to go to achieve equity on campus.
The use of the loaded word "survivors" implies accusers are in fact victims before any investigation whatsoever. This betrays exactly the kind of biased, brainless approach used by the Red Queen: sentence first. The "procedural protections" here represent their total absence, pretty words that mean nothing.
Unlike some critics, we recognize that replicating criminal procedures and unequal evidentiary burdens on campus is not only unnecessary but dangerously counterproductive and contrary to Title IX’s commitment to equality in education.
I.e. there's no point in having actual trials if we already know the outcome.
And we want to be clear: We do not espouse an ideology of mandatory forgiveness, in which victims, most often women, are expected to “move on” and sacrifice their own healing for their abusers’ convenience and comfort.
Right, so someone like Emma Sulkowicz can indefinitely go on and slander a man who has not, in fact, raped her? Because she's a "victim", a priori? So organizations like No Red Tape and Carry That Weight can persist in slandering a university president (and all their Title IX administrators involved in sexual assault adjudication) with no apparent basis?
For the four reasons stated above, we call for colleges and universities to ensure procedural rights for both parties, the accused and the accusing student. Many of these rights are already afforded by the Department of Education. Procedural rights should include:
  • The right to timely and clear notice of the allegations, parties’ rights and responsibilities (under both school policy and law), procedural updates, and the final determination
  • The right to review all materials used in the investigation and hearing with adequate time to consider and respond
  • The right to guidance from a trained advocate
  • The right to submit evidence and recommend witnesses and questions for the other party to decision-makers
  • The right to be heard by neutral decision-makers with professional expertise
  • The right to a safe and sensitive investigation and hearing
  • The right not to self-incriminate if criminal charges are possible or pending
  • The right to an explanation for the final decision
  • The right to fair and proportionate sanctions
  • The right to internal administrative appeal
I notice here that there is no procedural right to discovery by the accused, nor a right to confrontation of the accuser, nor a right to public proceedings, nor a right to representation by the accused. But more importantly than any of this is the fact that under Title IX the university is policeman, judge and jury. We separate these functions in criminal law for the good reason that allowing one entity to determine guilt is to concede a host of evils and abuse. This is of no interest to KYIX because they insist that "Title IX is about civil rights, not criminal justice" on the grounds that, among other things, "they may fear skepticism and abuse from police, prosecutors, or juries". Which is to say, to achieve their ends, they simply must dispense with rules of evidence that interfere with their witch hunts, and the shortest path thenceward is declaring the matter a civil matter, rather than a criminal case.
Student survivors of gender-based violence still face unconscionable barriers to safe educations.
I.e. they can't yet just expel arbitrary male students upon the vexatious and unsubstantiated accusation of any woman.
Those who assault, abuse, and harass deserve to face sanctions.
What does Ms. Sulkowicz deserve by this standard? What about all the signatories to this letter, many of whom have abetted her behavior?

(Hyperlinks in the text below added by myself for reference and convenience. They did not appear in the original letter.)
For the integrity and well-being of our communities, including those harmed, our systems of investigation, deliberation, and sanctioning must proceed with meaningful protections for all involved.


Know Your IX
Carry That Weight
No Red Tape
Our Harvard Can Do Better
CalArts Sexual Respect Task Force
7,000 in Solidarity: A Campaign Against Sexual Assault
Phoenix Survivors Alliance at the University of Chicago

As of the time of writing, 57 lawsuits now pend over the risible "student discipline" which is supposed to stand in place of actual rape criminal proceedings. One of those appears to have been dismissed Wednesday, but the John Doe plaintiff will appeal.  Here, I am uncharacteristically an optimist. Not all of these suits will fail. More, one gets the sense that KYIX's open letter takes place upon a background of increasing awareness of the actual dangers of Title IX to innocent men. As the NCHERM letter (PDF) attests (emboldening mine),
We fear for the mental health issues impacting many students, but in particular for those whose reality contact issues manifest in sexual situations they can’t handle and campuses can’t remedy. We hate even more that another victim-blaming trope – victim mental health – continues to have legs, but how do you not question the reality contact where case-after-case involves sincere victims who believe something has happened to them that evidence shows absolutely did not? How do campus and community mental health resources help someone who is suffering from real trauma resulting from an unreal episode?
What Camille Paglia rightly called the "tyrannical surveillance of students' social lives" cannot continue. These policies harm too many, amid utter indifference to evidence and facts on the part of those advancing them. It is the hallmark of totalitarians.

Update: FIRE, who really should be on the legal section of my sidebar, also has a long-form response.

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