From Harvard, With Love (Update)

In the course of a few days, the nightmarish usurpation of American college campuses by the toxic combination of a radical political agenda and some phony stats has come under severe scrutiny and is finally called out for the dangerous sham it is. Ironically, it began with a defense.

At Vox, Ezra Klein spilled the beans.

SB 697, California’s “Yes Means Yes” law, is a terrible bill. But it’s a necessary one.

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

This comes as no surprise to even the casual SJ reader.  But Klein didn’t come to bury the law, but to praise it.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.

In the name of the cause, we must sacrifice our children.  As KC Johnson explains, America doesn’t do “overreach.”

The law will mean that “too much counts as sexual assault” and that innocent students will be branded rapists (though such cases, Klein suggests in a fact-free claim, “very, very rarely” occur). But Klein considered it “necessary” to get more students deemed guilty of rape in “morally ambiguous” situations to convince men in college (but, it seems, not anywhere else) that “they better Be Pretty Damn Sure.”

So what if Klein isn’t big on facts, and swept in the convenient claims that false rape accusations “very, very rarely” occur, or swallowed whole the widely debunked

One. In. Five.

The sacrifice of the innocent is worth the goal of making certain that no woman ever feels regret after sex.  Remember when it was just about the mind-numbingly simplistic “just don’t rape”?  It’s now about the paradigm shift in gender relations, starting with college campus and ending with, well, everything.  Charles Cooke calls out Klein at The Nation:

This conceit has been accepted widely throughout civil society — indeed, it arguably put the “civil” part into that welcome phrase. And yet, from time to time, we are reminded that not everybody has quite grasped its consequence. Among those who are struggling with the idea is Vox’s Ezra Klein, who yesterday afternoon argued in no uncertain terms that we should disregard the due-process rights of accused rapists in the name of bringing about social change.

Cooke points out that Klein deems this a worthy trade:

Namely, that attempts to micromanage the personal and subjective realm of private sexual behavior will inevitably end up undermining due process. Alarmingly, Klein doesn’t even bother to pretend that this will not be the case. Instead, he describes the subversion of presumed innocence as the idea’s central virtue:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

Or, as he puts it somewhat eerily later on, “ugly problems don’t always have pretty solutions.”

It started in California, was quickly taken up in New York as it filtered through the Ivies.  Don’t get too hung up on the time line. It’s not a race. While there was a smattering of opposition, largely from the same few voices who recognized that this momentum toward “social change” was largely flying under the radar and came at the extraordinary price of due process and ruination of innocent lives, it was drowned out by the screams opposing rape.  Who could disagree with those who oppose rape?

Twenty-eight current and emeritus professors from Harvard Law School issued a letter, published in the Boston Globe, condemning the evisceration of due process and the sacrifice of the innocent on the altar of radical social change.  On the one hand, it took a long time in coming, as it’s not like this freight train couldn’t be seen coming from 100 miles away.

But they did it. They came out publicly and condemned this travesty.

Sure, it’s because it finally touched their world, as Harvard proved itself as blindly foolish as Occidental College, but law professors (sorry, guys) are among the most cowardly group in existence, tenure notwithstanding. They’ve known of this problem, yet chosen to remain silent lest they be tarred misogynists and rape-apologists.  Oh, the agony of bad names they knew with certainty would be hurled with abandon.  Hide behind rocks or be smeared.

Eugene Volokh published the complete letter, names and all, at WaPo Conspiracy, suggesting perhaps tacit approval. Yet, he couldn’t bring himself to express his position.  The list of the silent is long, though it’s shorter by 28 today.  But no more than 28.

For the handful of people who have been waving the flag against this and its companion cries to criminalize gender relations toward the goal of social change where neither consequences nor responsibility for all are valued, we’ve suffered the indignity of the nasty and ignorant.  For the sake of trying to warn of the coming danger, the paradigm shift that Ezra Klein announces is worth the ruin of innocent lives for glorious social change, we took the hit.

Now that it’s out in the open, that Ezra Klein has openly conceded that laws such as Yes Means Yes are horrible and destructive, but necessary to achieve the social change he deems worthy, that 28 Harvard lawprofs have exposed themselves to invective, have we finally reached the tipping point where the appeals to emotion and ignorance won’t trump constitutional values?

Let’s see who is bold enough to take a stand, even if it is in the shadow of the Harvard 28.

Update: Ezra Klein responds to the torrent of criticism by pretending it was all a post for The Onion. Oh wait. He was serious?  If somebody would be so kind as to explain how procedural and substantive due process works, and that preponderance of the evidence is not a higher standard than beyond a reasonable doubt, it would be appreciated.  Or not. Who knows?

19 comments on “From Harvard, With Love (Update)

  1. Jim Majkowski

    “Glorious social change” or bald administrative convenience? As my father used to say, “I’m not concerned about fairness, I want quiet.”

  2. Neil Faiman

    Best line from the NY Times article this morning:

    Savannah Fritz, a sophomore, reading about the professors’ protest in The Harvard Crimson, the student newspaper, called the law professors’ protest “a step backward.”

    “It just seems like they’re defending those who are accused of sexual assault,” Ms. Fritz said.

  3. Catherine Mulcahey

    Where do I sign up to take a stand? I’m a female senior citizen, f/k/a old lady, and I am outraged! Bad laws are NOT necessary, and nobody should be promoting this one.

    1. SHG Post author

      Ironic that this push back to Victorianism is from the young rather than the old. I’ll be the old guy standing next to you on line.

  4. The Real Peterman

    Some day, laws like this will be passed that affect the Ezra Kleins of the world, and then I bet he will change his tune. It’s easy to call for sacrifice when you’re not the one marching up the volcano.

  5. ShelbyC

    I wonder if Klein has ever slipped up and put his hand on his wife’s boob while they are in bed together kissing without her explicit, affirmative consent.

  6. Peter Gerdes

    If you are in any way genuinely unclear about the position the VC as a body (and I think by reasonable implication EV) is taking with respect to this law you haven’t paid enough attention to tone.

    True, they haven’t taken given an explicit position on the issue. But then again why should they? The law’s prudence is a complex sociological matter (even if I think there are pretty compelling reasons why it will in practice actually discourage valid complaints by attaching more social stigma to them) not one of statutory interpretation or constitutional law as EV usually makes explicit statements about. Unlike Harvard’s faculty, who I suspect only really care about the clause that makes the title 9 officer’s verdicts and fact finding binding on all colleges, it isn’t even a matter implicitly within his purview as a product of his membership in an academic body adopting such a rule.

    In general I found EV’s comments about what not to read into a failure of a blog to address your favorite issue particularly compelling. I mean blogging is about personal interest and motivation. Maybe you didn’t write anything because you were busy with your kids, maybe you didn’t want to bother to write up an analysis when you thought someone else had already given a compelling one. In particular, I think it is highly desirable for a blog to only “vote” on issues that grab them lest blogs themselves (and legal blogs in particular) become nothing but the meaningless babble of the ignorant partisans.

    1. SHG Post author

      This is nonsensical sophistry. If it was worth Eugene’s time to post the letter, it is worth a stance. And if Eugene wants to offer an explanation, that’s his role. Not yours.

    2. ShelbyC

      FWIW, Volokh has written that he supports a preponderance of evidence standard in order to discipline students for sexual assault.

    3. Sgt. Schultz

      EV, as you apparently like to call him, has been notoriously silent on issues, this and the constitutionality of anti-revenge porn laws. You can make any excuse you like (noting that the excuses you make here are utter self-serving speculation), but he has written on the subject, then stopped dead when his turn came to take a stand.

      Your lame attempt to rationalize his failure to take a stand by no stretch of the imagination saves him. If anything, your effort points out his failure to do so.

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