Catherine Lhamon: Come On Baby Light My FIRE

As advocacy groups go, The FIRE, Foundation for Individual Rights in Education, is a good one. Its work on freedom of speech on campus has accomplished a great deal, which is really quite amazing given the flip-flop of academia from free speech to outright censorship. But when it comes to Title IX, it’s given away half the battle.

An advocacy group called the Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students’ due process rights. By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn. “It is uncontroversial that there are both people who get away with things that they have done and there are innocent people who are getting expelled,” Cohn said. In response to the department’s guidance, campuses are “actively reducing due process protections, which is increasing the margin of error.”

Campus sexual assault adjudications, discussed here ad nauseam, certainly raise monumental due process problems, together with the question of whether the standard of proof, preponderance of the evidence, as dictated by the “Dear Colleague” letter from the Department of Education’s Office of Civil Rights, is grossly inadequate.

While FIRE has pounded on the latter issue, its significance is questionable. Putting adjudication into the hands of dilettantes, and expecting them to properly apply any burden of proof, is something of a fool’s errand. We charge criminal juries with the burden of “beyond a reasonable doubt,” but we know they have little understanding of what it means. Burdens of proof are abstractions, and if someone believes that an accused is guilty, then they’re guilty, no matter what the technical burden might require.

But all of this, while critically important, remains on the fringes of the problem. The core of the problem has already been ceded to the Catherines, McKinnon and Lhamon, with Andrea Dworkin singing the third part of the harmony.

Cohn said “it is perfectly appropriate to repeal” the 2011 guidance “as long as they really do go through the process of trying to view this from both sides” and adopt policies that protect the rights of both the accusers and the accused.

What? Is FIRE’s Joe Cohn saying that it would not be “perfectly appropriate” to rescind (not repeal, as it’s not a law) the “guidance” if it doesn’t “really” adopt policies that “protect both the rights of the accusers and the accused”? So it appears.

Perhaps Cohn is trying to make a statement that comes off more acceptably to those who demand that anyone accused of rape or sexual assault on campus be burned at the stake, under the working definition that both are whatever a victim says they are, so that The FIRE doesn’t seem too conservative and sexist. After all, the group is often called harsh names because its stance, at the moment at least, runs contrary to the progressive flavor of the month.

But there is a question that isn’t even on the table, and Cohn’s contention, beyond evidencing an inexplicable contortion of due process, not only ignores it, but suggests that The FIRE is advocating against it. What is the DoE doing in the criminal law business under Title IX in the first place?

When Congress enacted Title IX of the Education Amendments of 1972, it prohibited discrimination on the basis of sex:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

See the part in there about schools adjudicating sexual relations?  That’s not because it’s invisible, nor because everybody understood it to be implicit in the word “discrimination.” It’s because of pushing over decades down a slippery slope, step by step, inferential leap by inferential leap, until the notion of discrimination shifted from school actions to peer conduct, from objective detriment to the sensitivity of every purported victim, all combined with the seriousness of the bureaucrat in charge to withhold federal funds if schools didn’t bend to their will.

Colleges were never very good at playing courts, but then, they’re not supposed to be. They’re not courts. The tenured French Lit prof isn’t a judge. The Title IX administrator isn’t a cop (though most cops would be more than happy to cash their healthy paycheck), or a juror, though they find “facts” according to their peculiar rules of reality.

None of this will be solved by tweaking around the edges of a system that was never meant to exist, never constructed to be capable of performing a function that is completely beyond its capabilities and the law. And yet, The FIRE has not only given this problem away, but appears to advocate the extension of law well past its breaking point.

When incoming Freedom Caucus chairman Mark Meadows recommended the rescission of the OCR guidance letter, USA Today turned to The FIRE, and its policy director, Joe Cohn, as the responsible voice against the Lhamon rules. There is no reason to assume that Cohn has gone off the reservation and doesn’t speak for The FIRE when he endorses the concept of campus sexual assault adjudications, and approves of rescission provided it’s fair to the accused.

But if that’s The FIRE’s position, it’s most assuredly not a principled one. Much as I like The FIRE, it’s not their place to give away a law that Congress never authorized, that exists only because Catherine McKinnon pushed it for decades until everyone forgot that this was just her extended theory and not what any law provided. It may be fine with Cohn, but for the hundreds of college students whose lives will be destroyed, it may not sit nearly as well.

It’s not that there isn’t a role for advocacy groups in pursuing their mission, but when did the mission of The FIRE become fighting for feelings and fairness for the “survivors” of the gender wars? As Catherine Lhamon has moved from head of DoJ OCR to chair of the Civil Rights Commission, she can rest comfortably knowing that she won the war, with groups like The FIRE negotiating over the terms of surrender.

25 thoughts on “Catherine Lhamon: Come On Baby Light My FIRE

    1. SHG Post author

      It’s just a variation on the team sports theme. It’s not that I don’t like either the ACLU or FIRE, but that when they go astray (obviously, in my opinion), true “friends” tell them that their fly is down. I don’t know that I’m not a reliable ally, as much as I’m not a mindless sycophant for the team.

  1. Matthew S. Wideman

    I have known about the ACLU’s slide into un-principled Social Justice for sometime. I honestly thought FIRE would be the one group to stand up against the constant creep of Title IX interpretation. FIRE has taken a lot of shit over the years, for its consistently principled stances. I can’t believe they would concede in part after all of this time. Apparently being labeled “sexist” and “rapist defender” is the trump card that defeats the principle Due Process.

    It scares me that civilians (non-lawyers) are consistently choosing feelings over tried and true principles. “Experience should teach us to be most on 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.” – Justice Louis Brandeis (1928)

    1. Scott Jacobs

      It scares me that civilians (non-lawyers) are consistently choosing feelings over tried and true principles.

      Don’t mean to scare you further, but lawyers are doing it too…

  2. The Present-Minded Professor

    It’s possible that this article is misleading and the break in the quotation was more than just an awkward way to replace the word “it.” Partial quotes are red flags.

    1. SHG Post author

      It’s possible (because space aliens), but there are no partial quotes in the post. Of course, had you given more particulars, I might have a more precise reply, but since you didn’t, I don’t.

      1. The Present-Minded Professor

        Sorry for being unclear. Still mastering brevity.

        By “this article” I meant USA Today’s article, and the partial quotes are the fragments of Cohn’s key statement (in the second excerpt in your post).

        It could be that the gap between the two partial quotes only contained the word “it,” but it seems at least equally plausible (and more in character for both FIRE and for journalism) that it contained something more.

        1. SHG Post author

          The entirety of Cohn’s statement from the USA Today article is quoted in this post. To the extent I use fragments, they’re fragments from the quotes that are already fully quoted in the post itself. There’s no mystery here, and frankly, I’m kinda surprised something this obvious needs to be pointed out. Did you notice those indent-y thingies? They’re the quotes.

          1. The Present-Minded Professor

            It’s the USA Today that I’m talking about. I have no complaint about how you’ve quoted their article in your post. My complaint is how they reported Cohn’s statement. You weren’t able to quote the entirety of his statement because they didn’t provide it. They chopped it up for what looks like no good reason, which leaves the door open that we are getting the wrong idea about what he really said.

            That may be intentional or it may just be shoddy reporting on the part of USA Today. Even if it is an accurate representation of the points he was making, it’s bad reporting because it introduces that element of doubt. Especially these days.

            I’m also kinda surprised that something this obvious needs to be pointed out, but I suppose it would help if I didn’t suck at this so much.

            1. SHG Post author

              You’re giving me a headache. You couldn’t have said that the first comment? While that’s possible, the quoted portion, “as long as they really do go through the process of trying to view this from both sides,” is more than sufficient to sustain my concern.

              Plus, if Cohn was misquoted or taken out of context, he can always come here or send me an email and tell me. It’s not as if we’re not all friends around here. Nothing would please me more than to learn he didn’t say this and this isn’t the position of FIRE.

  3. Joe Cohn

    Thanks for your post, Scott. We welcome feedback and appreciate constructive criticism that produces thoughtful dialogue.

    To provide a little context for my quote, I was asked to respond to critics who argue that scrapping the Dear Colleague letter would be a disaster for victims of sexual assault. It was in response to that notion, and in the spirit of FIRE’s stance that robust due process protections need not come at the expense of actual victims, that I told USA Today that Congress would be justified in rescinding the Dear Colleague letter so long as it does the hard work of putting something in its place that “protect[s] both the rights of the accusers and the accused.”

    FIRE has long taken the position that campuses should not be adjudicating sexual assault. In fact, I testified to that in front of Congress in 2015. In my written testimony to the Higher Education Subcommittee of the House Committee on Education and the Workforce (https://www.thefire.org/fire-written-testimony-house-education-committee-with-attachments/), I wrote:

    “But if there is one thing that all sides of this issue agree on, it is this: Few, if any, schools have demonstrated the competence necessary to capably respond to the problem of sexual assault on campus. Too many campus administrators inject their biases into the process, while the rest, despite often trying their best, simply lack the necessary expertise or proper tools. This is the reality of the current system. It is very difficult to craft legislative remedies to the basic problems presented by entrusting the adjudication of allegations of serious criminal misconduct to a campus judicial system that was not intended to handle serious crimes and which will never have the appropriate tools or resources to do so. The current arrangement benefits no one, and its readily apparent failures should lead us all to question the wisdom of doubling down on this broken system.

    Campus disciplinary boards lack the ability to collect, hold, and interpret forensic evidence. They lack the ability to subpoena witnesses and evidence or even put under oath those who appear voluntarily. The parties typically lack the representation of experienced, qualified legal counsel, and they do not have the right to discovery. These proceedings are not governed by the rules of evidence and often disregard the right to confront adverse witnesses. The fact-finder—often a single investigator—decides whether there was a sexual assault under the low “preponderance of the evidence” standard. Put simply, expecting these tribunals to reach reliable, impartial, and just results is unrealistic.

    Victims of sexual assault deserve justice. Justice can only be served by competent professionals. Instead of creating a parallel justice system staffed by inexperienced, partial, and unqualified campus administrators to adjudicate campus sexual assault, policy makers should instead take this opportunity to improve and expand the effectiveness and efficiency of our criminal justice system to ensure that it provides an appropriately thorough, prompt, and fair response to allegations of campus sexual assault. Professional law enforcement and courts have the benefit of years of expertise, forensics, and legal tools like subpoenas and sworn testimony that are not available to campus adjudicators. These resources should be brought to bear on campus.

    […]

    Finally, college tribunals are an inadequate forum for addressing serious felonies. If complainants are reluctant to go to law enforcement, that problem must be addressed directly by working with law enforcement. Diverting sexual assault cases from the criminal justice system to campus courts is dangerous. The harshest sanction a university can impose on a rapist is expulsion. Campus courts are unequipped to provide either the necessary process due the accused or the punishment justice demands for the victim and society if the accused is found guilty. We must stop pretending that campus tribunals are adequate alternatives to criminal justice and prioritize referring complainants to law enforcement professionals, so we have the chance to remove dangerous criminals from our communities. We must stop circumventing the criminal justice system. Continuing to do so is dangerous.

    […]

    If Congress determines that campus tribunals must continue adjudicating these cases, there are steps that can be taken to improve their effectiveness and fairness. First and foremost, our public policy should encourage reporting allegations to law enforcement authorities and give them the space to conduct their professional investigations without interference.”

    FIRE does not plan on conceding campus due process any time soon. Thanks again for your comments.

    1. SHG Post author

      Thanks, Joe. I remember your testimony, which is what made this article shocking and hugely disappointing.

      I’m still unclear where the equivalency of protecting the rights of accuser and accused comes from. The Constitution protects the rights of the accused; the accuser neither has nor needs equivalent rights. Am I misunderstanding something?

      Edit: Then again, if campus sexual assault is completely unauthorized under Title IX, and if the Dear Colleague letters were improper regulation, then the guidance is improper regardless.

      1. Miles

        You must really like FIRE, because Joe’s response was total unprincipled horseshit. He wants it both ways, to not come off sexist while giving away the game.

        Joe, figure out whether you stand for principles or you want the girls to like you. You can’t do both.

        1. Miles

          I see you deleted the string of comment by that flaming nutjob who kept arguing that “victims are entitled to due process too.” Good on you.

          So when FIRE tries to be palatable to feminists at the expense of principle and law, people try to come up with vapid excuses just like the SJWs so they can play their confirmation bias just as they rip the other side for doing the same thing. It’s hard to be critical of a group that does good, but intellectual honesty and principle demands that we treat bullshit by one side no different than bullshit by the other. This was bullshit. Sad to see the FIRE water down its position to make it more acceptable to progressives.

          1. SHG Post author

            It’s not that he was a nutjob, but a non-lawyer trying to reconcile his bias toward FIRE by making a flagrant misstatement of law. The problems from my side are the amount of effort needed to undo the error, his persistence in re-arguing the error and the sense of futility in writing all this crap in the hope of not making people stupider, only to learn that a fairly regular commenter has learned nothing. What I take away is that these posts aren’t necessarily helping, and that non-lawyer readers are just as clueless after reading SJ as before.

            If I’m making people stupider, then I shouldn’t be doing this.

      2. Joe Cohn

        It was my pleasure to respond. FIRE has never argued that fairness requires that every right enjoyed by an accused must also be available equally to accusers, or that such a policy would be “equitable.” For example, we fought vigorously against the dual appeals provision in the Dear Colleague letter that was unfortunately later codified in the VAWA reauthorization. The DCL should be rescinded. If OCR wishes to do any more rulemaking, it must go through the formal process and consult all stakeholders. Any solutions in this area—regulations or otherwise—must be fundamentally fair and not, as they have in the past, overstep legal boundaries.

        FIRE has been on the front lines of defending campus due process since our founding. Our commitment to that cause will not waver. ​

        1. SHG Post author

          Joe, I’m sure you realize that SJ is mostly read by lawyers and judges (many of whom dwarf you in legal knowledge and experience, so you’re hitting the point of being monumentally insulting by treating them like they’re total idiots), so no need to do an infomercial. We know FIRE. We don’t need to be sold. What you’re failing to deal with, and it’s becoming increasingly problematic by your dodging the issues, is that your quote fails to back up your sales pitch.

          We get it. FIRE is wonderful. But your quote says what it says, and the harder you try to weasel out of what you said, the worse it looks. Cut the sales pitch. Unless you were misquoted, which you haven’t claimed, then you’ve got some explaining to do. Try explaining like a lawyer instead of a guy selling laundry detergent.

    2. Sgt. Schultz

      and in the spirit of FIRE’s stance that robust due process protections need not come at the expense of actual victims

      WTF? The whole point of due process is to protect the defendant. Blackstone’s ratio isn’t about accusers. If you’re trying to say that “actual victims” will have it easier than false accusers because they have evidence instead of tears and excuses, then sure, but that has nothing to do with due process.

      Of course due process will make it harder to convict. That’s what it’s fucking supposed to do.

  4. Troutwaxer

    Maybe the question here isn’t what Cohn says to a paper or to Congress, but what FIRE’s lawyers do in court, or when dealing with a campus tribunal.

    1. SHG Post author

      Interesting how we can bend over backwards to find excuses for those we like even though we know they’re nonsense. It’s so easy to slide into rank hypocrisy when it confirms your bias.

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