The first sentence of the article started that twitch that happens when it presages bad things to come.

In response to alarming statistics indicating that sexual violence is widespread at colleges and universities—and growing pressure from activists to do something about it—the Obama administration’s Department of Education has taken aggressive steps to enforce Title IX of the Education Amendments against sexual harassment and violence on campus. 

Oof.  I can’t even, to borrow a phrase.  But as the author, lawprof and former DoJ principal deputy assistant attorney general for civil rights, Sam Bagenstos, pointed out to me on the twitters where I was critical of the post, the article really wasn’t about statistics. He had a point. He accepted the basic premise that there was a rape epidemic happening, as his purpose wasn’t to debate its existence or depth.  That was merely a given in his article.

The point of Bagenstos’ article was that the fiasco that’s manifested in colleges nationwide applying the “suggestions” of the “dear colleague” letter from the Department of Education’s Office of Civil Rights wasn’t the government’s fault, but the outgrowth of a cottage industry of Title IX coordinators determined to milk the system for all its worth.

But the story is not so simple. To blame are two bureaucracies, one at the federal level, the other within individual colleges and universities, each emphasizing compliance over communication and common sense. Universities, perhaps stung by being called out on their prior inaction, overreached by allowing a class of professional campus administrators, insulated from the classroom, to pursue a maximally risk-averse strategy that went way beyond what the federal government was calling for and that put important values of academic freedom and fair process at risk on their campuses. 

In other words, the DoE OCR may have lit the match, but it was colleges that put it to the fuse, taking a sound position and turning it on its head.  Bagenstos goes on to note that it’s now up to the DoE to fix the problem by clearing up its purpose and stemming the tide of overreaction. Fair enough.

But the thrust of the article is defending the DoE’s purpose in lighting the match in the first place.  One might suppose that this would, of necessity, go back to whether there is, in fact, a rape epidemic, but that doesn’t make it to the front burner. Instead, Bagenstos goes for the DoE explanation:

To be sure, the government has made clear that schools must adopt procedures to address sexual misconduct on campus, rather than leaving the issue to the criminal justice system. But this is not objectionable. Universities routinely employ their disciplinary procedures to address student-on-student misconduct that also might violate criminal laws. That is because the schools recognize that they have an obligation to protect students against threats to their safety and well-being on campus, and that this obligation arises independently of whether the state believes it appropriate to deploy the apparatus of criminal punishment in a particular case. If a university is willing to discipline a student for theft, vandalism, or non-sexual assault without leaving those matters to the criminal justice system, then the school’s failure to treat sexual assaults the same way would seem to represent exactly the sort of discrimination that Title IX seeks to prevent. Indeed, it was precisely the widespread refusal of universities to take issues of sexual violence seriously that prompted the Department of Education to step up its efforts to enforce that statute.

Aside from conflating vandalism with rape, the penalties for which under any other circumstance would range from a stern admonition for vandalism to life imprisonment for rape, he covers the fuzzy nexus with the vague “obligation to protect students against threats to their safety and well-being on campus.” Well-being, as in hurt feelings, undue sensitivity, perhaps even a bit of neo-feminist sexual dogma?

When one addresses “safety,” it gives the impression of protection from unusual physical harm.  Students can fall down and scrape their knee, and short of bubble wrapping the sidewalks, it’s rather hard to prevent.  But when “safety” and “well-being,” both warm, fuzzy and vague, encompass everything from hurt feelz to micro-aggressions, the breadth of this obligation becomes clear. The hole in this perceived duty becomes big enough to drive a Mack truck through, as it covers anything anyone might “feel,” no matter how ridiculous.  Because feelz.

But that just leads to the core point, that OCR was more than completely reasonable, but right on the money:

The OCR’s requirement of a preponderance-of-the-evidence standard, too, reflects a reasonable accommodation of the various interests present in college sexual violence matters. Where criminal punishment is at stake, it is entirely appropriate to require allegations to be proven beyond a reasonable doubt. The state ought not to be able to deprive a person of his or her liberty, and brand that person a criminal, on the basis of a lesser degree of certainty. But criminal punishment is not at stake in university disciplinary proceedings.

This is what the article is about, an apologia for OCR’s ramming the preponderance of the evidence standard down academia’s throat upon the basis that it’s not criminal.  A theory that only a prosecutor could espouse with a straight face.

What is at stake is whether a student presents enough of a threat to other students to warrant the school taking steps to protect those other students.

A threat? Like the unwanted sexual assault of an attempted holding of hands? Like post hoc regret for consensual sex?

Bagenstos’ claim that it’s not criminal, because it’s not adjudicated by a criminal court, because the accused is denied due process, because he won’t be imprisoned, indulges in that subconstitutional argument that by calling it non-criminal, the gravely serious, life-destroying consequences aren’t real.  Just like civil confinement for sex offenders who complete their criminal sentences isn’t really imprisonment.

Losing years of tuition, years of studies, held out publicly as a rapist, tainted by notation on a transcript that will follow him for life and preclude all future opportunities except truck driver, this isn’t criminal. What’s the big deal about ruining a kid’s life if someone’s safety well-being feelings are at stake?

Where protection, and not criminal punishment, is at stake, we should weight the interests of those who claim that they have been subject to misconduct just as heavily as the interests of those whom they accuse of committing misconduct.

Before we “weight” anything, it has to be real, not a figment of a fragile teacup’s imagination.  Claiming that they have been subject to misconduct isn’t being subject to misconduct. And what constitutes misconduct, a concept untethered from any objectively discernible definition or pre-punishment notice, has morphed into a morass that leaves every male a target without basic protections or recourse.

Is the Department of Education off the hook for its “reasonable” imposition of a preponderance of the evidence standard because the protection of accusers deserves more weight than the wrongful punishment of the accused?  Hardly. And the fact that it has stood by while watching its “Dear Colleague” letter wreak havoc on male students’ lives is inexcusable.

So, Title IX protects the safety and well-being of all students?  Not male students accused of hurting some special snowflake’s feelings. And protestations aside, expulsion is the punishment of choice, particularly since anything less will buy a college a spot on the DoE’s list of schools under investigation for not taking hurt feelings seriously enough. This is all OCR’s fault, and the cowardly colleges too.