Apparently, the plan was to make sure no one could ever challenge an accusation of sexual misconduct in college. Lest there be any question, this was not because of some intrinsic hatred of due process, confrontation, all those nasty technicalities that criminal defense lawyers hurl about in criminal courtrooms.
This was about promoting the feminist agenda that no woman who alleged that she had been sexually abused, no matter what evidence she had or existed to the contrary, should ever, ever, lose. This isn’t a contrarian view, or a secret scheme, but as open and apparent as could be. It affected the serious and foolish alike. It was a policy choice. They would rather ten innocent male students be expelled than one false accusation of sexual misconduct fail.
And it not only seemed like a good idea at the time, but was bolstered by legal scholars who ridiculed the notion that the rights afforded to criminal defendants, due process, reliable evidence, confrontation, double jeopardy, have any place in university discipline when a claim of sexual abuse was on the table. Anyone who thought the accused deserved half a chance was a misogynist, which is one step above a rapist and deserving of whatever pain was inflicted anyway.
In the Wall Street Journal, lawyer, feminist and mother Judith Grossman tells of her son being the accused. Key to her commentary is that the young man with his butt in the hot seat was hers. Not mine. Not yours, but hers. Nothing clarifies issues as well as being personally touched by them, and nothing touches a mother more than her child being in the line of fire.
Until a month ago, I would have expressed unqualified support for Title IX and for the Violence Against Women Act. with alleged acts of “nonconsensual sex” that supposedly occurred during the course of their relationship a few years earlier.
What followed was a nightmare—a fall through Alice’s looking-glass into a world that I could not possibly have believed existed, least of all behind the ivy-covered walls thought to protect an ostensible dedication to enlightenment and intellectual betterment.
To the extent we blink so that we don’t need to see the ugly details of larger concepts we adore, like Title IX and the Violence Against Women Act, the people forced into battle have no choice but to look them square in the eye.
I recall a client, whose politics were very Republican, very conservative, charged with a very serious crime back when Dukakis was running against the Elder Bush, asking me why the government wasn’t offering him a slap on the wrist because of “revolving door justice,” harkening the pervasive Willie Horton advertisement of the time. I just smiled as he realized that he might have been a little too blinded by his politics, and the TV advertising was not a sound basis for his expectations of the criminal justice system. I enjoyed the irony, though I knew how painful his epiphany would be.
So too was Grossman’s epiphany.
There was no preliminary inquiry on the part of anyone at the school into these accusations about behavior alleged to have taken place a few years earlier, no consideration of the possibility that jealousy or revenge might be motivating a spurned young ex-lover to lash out. Worst of all, my son would not be afforded a presumption of innocence.
In fact, Title IX, that so-called guarantor of equality between the sexes on college campuses, and as applied by a recent directive from the Department of Education’s Office for Civil Rights, has obliterated the presumption of innocence that is so foundational to our traditions of justice.
Grossman goes on, in the fashion that happens regularly by the accused and their family, to parse the minutiae of process, excruciating detail by detail, astounded and outraged by the rights not afforded, the ones we spouse in our “tradition of justice” in the “real” legal system. It’s almost charming in its naiveté.
The evisceration of rights always comes in lockstep with high ideals and good intentions. Do it for the women. Do it for the children. No one should ever have to suffer the harm, the pain, the indignity of being the victim of whatever flavor of offense we’re striving to eliminate today. Grossman was all for it, until she wasn’t.
But she better hope that her son is never the target of an accusation in a real courtroom. Sure, all those rights she touts are chiseled into the courthouse lintels and appear in the first few paragraphs of legal opinions that go on to explain why they don’t apply in this case. We have a tradition of reciting platitudes of justice, and a tradition of coming up with really good reasons why they don’t apply.
I fear that in the current climate the goal of “women’s rights,” with the compliance of politically motivated government policy and the tacit complicity of college administrators, runs the risk of grounding our most cherished institutions in a veritable snake pit of injustice—not unlike the very injustices the movement itself has for so long sought to correct. Unbridled feminist orthodoxy is no more the answer than are attitudes and policies that victimize the victim.
Or terrorism. Or the war against drugs. As sympathetic as we may be with the plight of Judith Grossman’s son, her vision is still limited to that which touched her life. The evil she sees is “unbridled feminist orthodoxy,” because her son was charged with sexual misconduct. But it’s no more evil than any agenda stoked by the “current climate” of fear.
I hope she is never forced to come to the larger epiphany because her son has been accused of some other offense against some other orthodoxy. This may be a huge step forward for Grossman, but she still has a very long trip ahead of her before she realizes what the “tradition of justice” really means.
H/T Walter Olson at Overlawyered
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I ran across the same thing all the time when I was a Personal Injury attorney. People were all for tort reform until they found out it meant that they could not recover for THEIR injury. Then, their tune changed.
Same thing with “anti-terrorism” legislation. People clamor for tougher laws against “them” until they realize that “them is us.”
And I am sure that the same will happen with this wave of “common sense gun control” that is being pushed today. people will support it until they feel the need to defend THEIR family and are denied their rights by some bureaucrat who thinks he or she knows what is best.
But despair is a sin…
It’s never really about the underlying rights, but the particular issue that affects them. That’s the bad one, and nothing else changes.
I don’t recall the Kafka story in which the protagonist goes through a 2-hour hearing that exonerates him.
You are a very literal young man. Some consider that a virtue.
I feel for him. Today, in solidarity, I’m going to go on a hunger strike between breakfast and lunch, in remembrance of the liberty he lost.
How facile of you. I would expect nothing less.
“eyes roll* and young men never ever lie to their mothers about what they did sexually.
but i can play the biased observer using antedotal evidence to make unsupported conclusions game too:
there will always be a large number of young men getting away with raping young women on campus – and every one of their mothers claim that they are perfect innocent little angels.
Seriously, it is hard to think of a less convincing argument that this one. For every mother whose innocent angel of a son was dragged through a biased college disciplinary system there is a young woman who was raped and had absolutely nothing happen to her attacker because of the biased college disciplinary system.
So Erika you agree that “due process, reliable evidence, confrontation [and] double jeopardy” don’t have any place in university discipline when a claim of sexual abuse is made?
There are two places where liberal orthodoxy inherently conflicts. One is sexual misconduct. The other is free speech. Erika is a huge supporter of due process, etc., except when it comes to a woman accusing a man of sexual abuse, when she isn’t.
Yes it’s impossible to speak the language of presumption of innocence, rights and due process, when we believe that any allegation of sexual misconduct is true no matter what.
It’s the clash of sacred cows. Only one can survive.
*sigh*
in a couple of weeks when the directive from News Corp headquarters changes and they switch from the memes of bashing colleges and having a woman bash women’s rights and are are is back to pushing the meme of due process letting dangerous people off supported by a crying mother who claims that her daughter committed suicide after her college ignored her claim of being date raped maybe you will understand my point.
No, I understand your point. I just don’t agree with you.
why bothering actually asking me what i actually think when you can just make presumptions and assumptions? why bother questioning a biased account when it supports your prejustice?
But if consistency is what you want, the next time a crying woman appears on Nancy Grace or The O’Reily factor claiming that her college and/or the criminal justice system ignored her report of being raped and let her dangerous rapist of an attacker off scott free than you should accord that claim the exact same degree of unquestioned creditibility that you are according this story.
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Dissenting, Olmstead v. United States, 277 U.S. 438 (1928).
And women, too.
The only facts we have are those provided by Grossman, including that the charges against her son were ultimately dismissed. From this, you glean he was guilty and accuse us of making “presumptions and assumptions.” So we’re at fault for not assuming Grossman is either a liar and moron and that her son is guilty despite the total absence of basis because a woman accused him of sexual misconduct?
As AP says, we do get it.
The only point that i have made – and has not been made for me by you and Scott in your construction of a strawwoman – is that i view an biased account from a biased source printed in an ideological newspaper as not being trustworthy.
if you disagree with that, then you are incredibly naive.
I’m deeply disturbed that you would assume Judith Grossman to be a liar. Just because she is female does not mean she is incapable of truthfully recounting what happened to her son. That’s terribly sexist and offensive. Please do not use my blawg as a platform for such insensitivity toward women.
No, you and AP are too busy constructing a strawwoman to fight that you fail to notice that i have not expressed any opinion about this case at all.
I don’t think “opinion” means what you think it means.
Now you are just trolling me 😛
I don’t think “now” means what you think it means.
This is why Simple Justice is a daily must-read for me. I get to learn things about myself I never knew.
Me too!
i’ll just go off and cry with my comfort guinea pig then 😉
It will certainly help to relieve the anxiety, especially since it’s a female guinea pig.
Do you believe “due process, reliable evidence, confrontation and double jeopardy” have a place in university discipline in general?
While I understand that the federal legislation in the US requires universities to investigate allegations of sexual attacks, I don’t really understand the policy reasons.
The university should not be using internal discipline in such a matter. It is altogether too light, and the investigation of such a serious crime requires professional criminal investigation. Either you end up disciplining an innocent student, or you end up disciplining a felon, who should be facing criminal charges. Discipline is appropriate for such infractions that are not really even misdemeanors. No one in his right mind would think that the university should investigate and discipline a student accused of murder, either. Then, if charges are brought and the student is found guilty, it is time to expel the convicted student.
In European human rights law, such practice would result in even a worse thing: administrative disciplinary measures by public authority, if no longer appealable, trigger double jeopardy protection. In a ECHR member state, such university discipline would preclude a criminal prosecution. For this very reason, the laws governing educational disciplinary procedures here have a clause that stops the disciplinary proceeding, if there is a simultaneous police investigation.
Colleges and universities, particularly state colleges and universities, are their own little bubble worlds with their own little police forces and tribunals, subject to a host of state and federal laws that do not apply to anything beyond the boundaries of the campuses.
Universities have strong incentives for handling everything they can on their own without resort to the regular law-enforcement/judicial system lurking just outside the bubble. Universities can keep disciplinary matters quiet because hearings are not open to the public and are not a matter of public record, unlike arrest records and court proceedings. Remember that the parents of some students are influential, wealthy, and may be big donors, so the school is well advised to protect the reputations of their charges. Also remember that the parents of prospective students are inclined to look at campus crime statistics when checking out a school, so the school is advised to keep these as low as possible by any means available.
Universities practice omerta as rigidly as any Mafia family. Just look, for example, at the behavior of Penn State regarding Jerry Sandusky.
Okay, let’s see if I have this straight: a male university student is accused of sexual misconduct and falls into the hands of a system warped to pursue a narrative of feminist orthodoxy. Right? But, isn’t it a bit late in the day for Grossman to be rehashing this? After all, Nifong was disbarred years ago … oh, wait. We were talking about how university discipline differs from Real Law, weren’t we. Silly me. Real Law couldn’t possibly produce anything parallel to her son’s predicament, so he would have been much better off if his crime had been reported to the townie cops. Right?
Honestly, was Grossman living in a cave somewhere during 2006-2007? At least her son didn’t have to go through public/media shitstorm along with everything else.
It doesn’t really matter until it touches them.
.
“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” (Olmstead v. United States (1928) 277 U.S. 438, 479 (Brandeis, J., dissenting).
“History teaches us that there have been but few infringements of personal liberty by the state which have not been justified . . . in the name of righteousness and the public good.” (Minersville School District v. Gobitis (1940) 310 U S. 586, 604 (Stone, J., dissenting).
.
Notice anything special about the quotes?
.
Yeah, they were written by two men who obviously understood but, in those particular decisions, lacked the necessary zeal to persuade the majority on the topics of dangers to liberty and the insidious encroachment by men upon those liberties in the name of righteousness and the public good . . .
As we are fond of saying, “You can’t win ’em all, dude” . . .
.
Who says he’s not lying? Who is claiming this guy is a perfect little angel? As far as I can tell, even Ms Grossman doesn’t express an opinion on whether or not her son is lying. Her complaint is that the the process to determine whether or not he was lying lacked some of the most basic safeguards.
You’re about half right. Almost.
you know, my really cynical side does have me wondering whether she believes – at least subconsiciously – that perhaps her son really is a rapist. She did after all out her son as an accused rapist in a national publication after a secret proceeding that many people are going to see as a coverup to protect the college cleared him.
There is nothing to suggest that the allegation was rape. Odd that you simply assume that. Oh wait, you don’t assume.
people looking him up are going to learn about these sexual allegations and presume rape.
You have baselessly assumed rape. Don’t exacerbate your error by assuming that others will share your baseless assumption.
“in a couple of weeks when the directive from News Corp headquarters changes … maybe you will understand my point.”
Erika, you obviously don’t regularly tune into this blog. The viewpoints here versus those of the News Corp outlets do not usually correlate, to say the least of Murdoch’s stronghold of general ignorance.
Does this mean I won’t be invited to Rupert’s birthday party?
Yes, both were in dissents that in time became more influential than the original decisions. Particularly Gobitis, which was overruled not long after by Barnette, notwithstanding Frankfurter’s expression of impassioned patriotism and disdain for the lesser intelligences of anyone other than himself.
It seems like almost every great quote comes from a dissent. Or maybe that’s why they’re great to us.