Stop The Madness

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.

27 thoughts on “Stop The Madness

  1. Vin

    Unfortunately, the bias of the masses is the primary opponent of the reasoned minority. We believe what we can recall. We recall what we hear the most. Sadly, the biggest mouths with the biggest stages are perpetuating the myths that have the government stomping all over the 6th amendment rights of the accused.

    1. SHG Post author

      The tyranny of the majority is one of the reasons why we seek to provide the accused with protection. If it was up to the townspeople with torches and pitchforks, we wouldn’t need to worry about trials, just a tree and some rope. We try to do better than that here.

    2. The Real Peterman

      Do the masses agree with this madness, though? It seems to me that the “yes means yes” crowd is pushing their views into colleges because that’s one of the few areas of this country where they have power. No one elected these Dept. of Education zealots; they were appointed. If their views were put on the ballot, I suspect they would fail outside of California.

      1. SHG Post author

        It doesn’t matter what the masses think. It’s the handful of zealots who drive the train, and the masses only give a damn when they feel the consequences, at which time they scream, “how did this insanity happen?”

  2. Nigel Declan

    So how long before the Administration starts sending schools quotas for the number of students that must be expelled for sexual assault (presumably using some algorithm that multiplies “1 in 5” by the female student population and some other factors)?

  3. david

    Taking a step back, there were 4 comments on this story, yet when I read it there were 34 on the “pet” story coming after it.

    I have 4 boys; maybe I have a different perspective . . .

    1. J.P.

      David, I’d noticed the same. It suggests that the regular audience is less interested in this topic than in the bad laws, bad police trope. It might mean that the audience of regulars is less receptive to Scott’s views on this topic than on others. But if that’s the case, I’m surprised there aren’t more posts challenging those views.

      1. SHG Post author

        There are too many variables to read too much into this. I’m often amazed at which posts here get tons of comments and which don’t, the former being (in my mind) far more important than the latter at times. Go figure. It may mean people don’t care. It may mean people don’t disagree. It may mean people have nothing worthwhile to add. It may mean nothing.

      2. Paul

        Not having done any focus groups on this topic, I can only speak for myself, but I find that my reaction to posts here consists largely of a. vigorous agreement with almost everything SHG says about criminal law outside of the sexual harassment context, and b. disagreement and occasionally even outrage at his views about sexual harassment.

        As for why there are no critical posts from me challenging those views, the answer is simple: writing them is pointless. The tiny probability of changing a reader’s mind is outweighed by the overwhelming probability that I will be personally attacked for having the temerity to try. (Right this moment I have a cold and am largely housebound, so I guess my threshold for post-worthiness is lower.)

        I am NOT speaking about any personal experience here; this is not a “SHG was mean to me so boo-hoo” post. Rather, I’m giving my observations of interactions with other people. This blog is structurally set up to quash dissent, and it would be a serious logical error to view the comments as reflective of anything other than selection bias.

        1. SHG Post author

          I agree with you about selection bias for a variety of reasons, not the least of which is the sort of person who chooses to read SJ. That said, you are wrong when you say this blog is structurally set up to quash dissent. It’s structurally set up as my soap box, because it’s my blog. It may appear the same from where you sit, but it’s not.

          Did you agree with Arlene and Kevin about how nobody appreciates cops? I bet not, given your views. Yet, I posted their comments. I don’t have to, but I did. Now, was I kindly toward them? Hardly, but I allowed their views to air and the only thing preventing a reader from finding them persuasive is their content. I thought they were idiotic? So what?

          Nobody forces anyone to agree with me. Or in your mind, does it not count unless a commenter wins me over to their side, or I am sufficiently “civil and respectful” to suit your sensibilities? If you have a point, make it. If I respond by telling you you’re a moron, so what? That’s just my view, just like you get to air your view. Why should you give a damn about my approval?

          That said, I’m not suggesting that comments here are a proxy for anything. And as for your being outraged by my positions on sexual harassment, smart move not commenting. It probably would end with me being very mean to you. I am not at all fond of liberal hypocrisy and blind adherence to neo-feminist dogma. You would make Phil Ochs cry. Lenny Bruce would hate SJWs.

          1. John B

            I think the point he’s (poorly) trying to make is that the comments that disagree with SG are trashed, so he’s commenting from a place with well less than all the information since we only have SG’s anecdotal comments on what gets trashed and what doesn’t. If you disagree with SG and all of the comments on a blog you respect it’s easy to think that anyone who disagree’s has been shown to the trash bin.

            I’ve been reading for about a year and rarely comment as Imnal and have nothing substantive to add, but have seen plenty of times people disagree in the comments and they usually know how to structure a sentence. I think the comments that get trashed are the ones that add nothing to the convo or are just flat out stupid.

            Also, why take offense at the idea that you can come into SG’s living room and disagree and not be shown the sharp side of his tongue?

            1. SHG Post author

              I never trash a comment for disagreement, per se. Hell, I post comment from people who despise me, just because that isn’t a qualification. See comments by Scott Henson (Grits) or Max Kennerly, for example.

              I trash comments mostly because they advocate violence. Occasionally, they’re just emo rants (which is my exclusive turf), personal war stories and, recently (due to the post about Lawrence being killed) arguing the legitimacy of sovereign citizens (not going there). Some are just too stupid, regardless of whether they agree or disagree, to publish, a la Billy Madison.

              And, surprisingly, I trash comments that only says “I agree” with me, which nobody cares about and add nothing to the conversation.

            2. Paul

              “I think the point he’s (poorly) trying to make is that the comments that disagree with SG are trashed”

              Dude, I’m a lurker, not an idiot. Five minutes spent looking at a deep thread on this site will tell anyone that critical comments that ARE submitted will indeed be posted.

              What I meant is that many (perhaps most; I have no idea) would-be disagreeing comments are never submitted at all, because the atmosphere is such that people are deterred from doing so. Hence, “structural set up,” not “censorship” or something such.

        2. Myles

          Has it occurred to you that “tiny probability of changing a reader’s mind” has nothing to do with SHG or SJ, but the weakness of your argument?

          If you thought you had the goods, what difference would it make what anyone else says? SHG takes a risk with every post here of people disagreeing with him. You either lack the chops or lack the balls to take a punch. Don’t blame SJ for your failings.

          1. SHG Post author

            I don’t imagine anybody agrees with me about everything. Somebody thinks I’m an idiot? So what? I have broad shoulders.

        3. RKTlaw

          This response puzzles me. If you feel strongly about the issue, then step up and have a go. If SHG (or anyone else) thinks it is without merit, expect them to fire back. Hard. That’s the nature of the beast. If the response is “it’s not worth the time”, then I would suggest that that position is just cowardice. It was worth your time to write “it’s not worth the time”–better to use that time to try and make your point and stand your ground.

            1. SHG Post author

              Don’t be a wussy. Stand your ground and argue you said it better than Myles. He’s ugly and dresses funny anyway. (Watch out for incoming…)

          1. Paul

            I’m going to group my responses to all three of these comments together.

            This is not about “airing views” about which I “feel strongly.” Nor do I hold the delusional belief that if I “have the goods”, I will win the post. That is not how the internet works. Myles, the “possibility” you speak of has indeed occurred to me, and I reject it as contradicted by the relevant evidence (e.g. studies on ideologically-motivated cognitive biases).

            All of this is about entertainment. Straightforward cost-benefit analysis. I don’t find it entertaining to be insulted. I submit that most people agree with this view, which is why insulting people, which dramatically raises the cost of disagreement, is an effective method of driving away the non-like-minded. (It’s probably not a very effective tactic on FetLife… but I digress.)

            You’re of course free to project onto all of this the theory that I am stupid, cowardly, and/or possessed of weak arguments if you wish. How you could possibly think you know such things, I have no idea, but whatever helps you sleep at night.

            Final note: I do not suggest that SHG thinks that the comments are a proxy for anything in particular. J.P. theorized that they might be. I found that interesting and responded. Perhaps, as I said earlier, this is the viral load talking.

            1. SHG Post author


              I don’t think any of the response bore upon your being stupid or a coward. They responded to what you wrote. That’s how discussion happens, and just as they can’t possibly know “you,” you can’t possibly expect anyone to respond to anything other than what you wrote. Fairness goes both ways. Maybe that wasn’t the way you wanted to come off, but hey, that’s how it was read by others.

              As for not wanting to be insulted, you will see that there are time I find people’s points thoughtful, even if I disagree. There are times people have corrected me and even changed my mind. Not often, but there have been occasions. Then there are time when people disagree with some pretty dumbass stuff. I note you didn’t mention the comments by Kevin and Arlene. Should I have been more accommodating? Or is it fine when I am insulting as long as you agree, but not fine when you disagree?

              You don’t offer who you are or what you do. Maybe you’re a criminal defense lawyer. Maybe not. But most of us tend to be able to throw a punch and able to take one. If that’s not you, fine, but don’t blame us for being what we are.

              So you wanted to get in you dig, and you did. Some people, myself included, responded to what you wrote, and still you’re not satisfied. Sorry, Paul, but just as you want to get your bit in there, you have to take it from others. If it doesn’t entertain you sufficiently (and lord knows I exist to entertain you), so don’t comment. Or don’t read. But don’t whine about it either. Remember, no one forces you to come here, and no one will stop you if you leave.

        4. Fubar

          Comment balancing template designed to avoid the twin heartbreaks of selection bias and structural quashing:

          Orthodoxy holds this line as vassal.
          This line defends hetero’s castle.
          This couplet’s a proxy
          For any old -doxy,
          And this line is brazenly facile.

          1. Myles

            I was just about to comment, but you stole exactly what I was going to say. Damn you, Fubar.

            And SHG, I will never send you a selfie again if you reveal my secrets.

      3. Patrick Maupin

        David, I’d noticed the same. It suggests that the regular audience is less interested in this topic than in the bad laws, bad police trope.

        As for myself, I don’t think I disagree with much, if anything, that Scott has written on this topic, but that doesn’t make me disinterested in the slightest.

        As Scott noted, you probably shouldn’t read much into the lack of comments. Speaking solely for myself, I will note that, in the current political climate, badly worded, easily misconstrued comments on this topic could come back to bite the commenter much harder than on those other topics.

        This doesn’t mean I won’t comment on this topic, but honestly, the sheer breathtakingly audacious stupidity of the current path, as well documented by Scott, makes it so hard to comment without frothing at the mouth that it seems almost by design — “Hey look, everybody who opposes us is frothing at the mouth stupid!!!”

        Hell, even the usual thoughtful, well-worded original posts by Scott anywhere near this topic bring out the PC crowd en masse.

        Except now. They’re apparently way too clever to bother engaging in argument with the disenfranchised once they’ve won the heart of the government bureaucracies. Which is yet another reason to try to avoid being frothing-at-the-mouth stupid, and to just let Scott’s words speak for themselves.

        1. J.P.

          Ha, I hadn’t thought of that, but you’re right. The implicit (and increasingly explicit threats, see, e.g., and threats to livelihood and reputation that come with being on the “wrong side” of debates like this get lots of people to shut up. I suspect many people, not wanting to be labeled as “rape apologists” or, in other contexts, “bigots,” don’t just shut up, but gradually adopt the other side’s position so as not to be worthy of the labels.

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