One of the sorriest examples of academic cowardice has been the failure of law professors to publicly challenge the Department of Education’s Office of Civil Rights imposition of regulations on higher educational institutions to eviscerate due process in its war against the debunked “epidemic” of rape and sexual assault on campus.
A shining example of intellectual honesty appeared at Harvard, where 28 lawprofs stood up and challenged the university’s embrace of feminist fashion trends over the collateral damage of male students. Nonetheless, the OCR concluded that Harvard violated Title IX, and the university reached a resolution with the agency, which included this remarkable condition:
Review any complaints of sexual harassment filed during the 2012-13 and 2013-14 school years to carefully scrutinize whether the Law School investigated the complaints consistent with Title IX and provide any additional remedies necessary for the complainants.
Notably, this would authorize the OCR to provide “additional remedies” not for those whose complaints were proven, even under the minimal preponderance standard, but merely for anyone who made a complaint.
False? Unproven? Mistaken? So what? The OCR is authorized to swoop in and impose “additional remedies” if it so chooses. Ordinarily, we think of remedies as that which happens after a complaint has been determined to be valid and proven. Not here. This is hang-’em-first, and then try them (maybe) later stuff.
But consistent with the demands of intellectual honesty and the rigors of approaching due process without being blinded by gender politics, Harvard lawprof Elizabeth Bartholet refused to remain silent.
While Harvard pledged to make changes, Elizabeth Bartholet, a veteran law professor at Harvard Law who teaches civil rights and family law, called the federal government’s recent campaign against colleges “madness” and said history would prove it wrong on the law. (Prof. Bartholet has been an outspoken opponent of policies that she and other law professors say strip students accused of sexual assault of their due-process rights.)
“Stop the madness” is, indeed, apropros. There is a sordid history of adopting measures that undermine basic rights, and just as importantly, the procedures that exist to assure that fundamental fairness is provided the accused, when transitory hysteria takes over. Remember Korematsu? Not one of our shining moments, and history has properly proven it to be a blight on our national integrity.
At the WSJ Law Blog, Jacob Gershman posts an email from Prof. Bartholet:
The federal government’s decision that Harvard Law School violated Title IX represents nothing more than the government’s flawed view of Title IX law. The Department of Education’s Office of Civil Rights, which issued the decision, is not the ultimate decision-maker on law. The courts are responsible for interpreting the law. And I trust that the courts will eventually reject the federal government’s current views. The courts’ decisions to date, including the U.S. Supreme Court, show a much more balanced approach to sexual harassment, one which recognizes the importance of vindicating the rights of those victimized by wrongful sexual misconduct, while at the same time protecting the rights of those wrongfully accused, and protecting the rights of individual autonomy in romantic relationships.
A system that both vindicates the rights of victims not to be harmed, while protecting the rights of the accused? A system that protects the rights of “individual autonomy in romantic relationships” rather than micromanage it by government regulation. Not exactly a radical idea in America, right?
And yet, the arm of the executive branch responsible for assuring balance in education has chosen to take one side to the exclusion of the other, and impose its will, which reflects the will of the chief executive as well, upon colleges and universities. And unsurprisingly, most have not merely taken it, but embraced it with open arms.
Prof. Bartholet said that Harvard University failed to challenge the government, and that other schools throughout the country need to show leadership by resisting the Department of Education’s position.
“I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position,” she wrote.
There will be students, male students, whose lives will be severely and permanently impacted by being accused of rape or sexual assault in what may amount to a modern day witch hunt.
Granted, neither the OCR nor advocates who maintain the existence of a rape epidemic, at least by their untethered definition of rape as anything a female wants it to be, despite all evidence to the contrary, really care. The sacrifice of male students to false and frivolous accusations is just necessary collateral damage in the war to infantilize women. But it’s their war, and they plan to win it.
As Prof. Bartholet suggests, history will not be kind to this madness, nor should it be. To her enormous credit, Prof. Bartholet has not put gender ahead of reason and reality, and has taken a stand for due process and fairness for all students. For that, she may well suffer the indignity that so many others have endured, to be decried as a rape apologist for her refusal to compromise her integrity and intellectual honesty by hopping aboard the neo-feminists bandwagon.
For this, she deserves recognition and praise. When the time comes to look back at the male students burned at the stake of this madness, Prof. Bartholet will be remembered as one of the academics who showed the fortitude to stand firm in her respect for civil rights and protection of all students, without regard to gender.