As the fight for due process on campus rages on, fools, liars and shameless self-promoters* have been desperately trying to salvage a viable argument against the rescission of the Title IX “guidance.” They cry, what about the Clery Act? What about the Violence Against Women Reauthorization Act? Notably, none of the proponents actually offer any substance as to what these laws have to do with anything. There’s nothing there.
If you wonder why not a single one of the now-64 adverse federal decisions holding that the Title IX guidance fails to provide due process to students ever mentions these laws, it’s because these are red herrings, some peripheral language that touches on campus sexual discipline, but irrelevant to the issue. The presumed expectation is that screaming, “Oh yeah, what about the Clery Act?” is good enough to shift the burden away from facts and law. It’s a fool’s game.
Lawyers who litigate the cases won’t play it because they don’t want judges to laugh at them for being idiots. Judges don’t play it because they know the law. The only people who try so very hard to play it are fools desperately trying to deflect attention away from the deprivation of due process on campus. Yet, this appeared to be the best effort those seeking to perpetuate a system of star chambers could muster.
Where, I asked, is an honest argument in favor of the cause? It was rumored that Ezra Klein at Vox had made one, but it took the kind efforts of Amy Alkon to dredge it up. Granted, the specific subject wasn’t the Title IX kangaroo courts, but rather a step down the road to perdition, “yes means yes.” And to his credit, Vox’s Ezra Klein told the truth.
Klein premises his contention on a now-well known false statistic, and one that has ironically been subject to so many facile variations since then that it could take hours, if one was to make the effort from a clean start, to nail it down to its source:
Every discussion of the Yes Means Yes law needs to begin with a simple number: A 2007 study by the Department of Justice found that one in five women is the victim of an attempted or completed sexual assault while in college.
One. In. Five.
That study relies on surveys of two campuses, and sexual assault is a notoriously underreported crime, so it’s possible the real number is much higher, or somewhat lower. Either way, it’s far too high — evidence that something has gone very wrong in the sexual culture.
This is the gender-war equivalent of the flavor of the month in free speech, the Naxos. The sky is falling, so law be damned. Inter arma enim silent legēs. When facing the end of times, the niceties need no longer be observed. It’s win at all costs.
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. (Emphasis added.)
And that is the honest answer. The only honest answer. Blackstone’s Ratio, that it’s better that ten guilty men go free than one innocent man be convicted, is turned on its head. Innocent men (and women) will be prosecuted, will be punished, but it can’t be helped or a guilty person may go free. That can’t be allowed.
Klein goes for the big issue, that men “better Be Pretty Damn Sure” if they want to survive campus sexual politics. He is a well-intended optimist, assuming that if they are pretty damn sure, they will survive unscathed. Another word to describe his assumptions would be naive.
Or take another common situation: consent that may or may not have been delivered by someone who may or may not have been too drunk to deliver it. The law is plain on this point, “It shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity … due to the influence of drugs, alcohol, or medication.” If you go before the college board and say that the woman accusing you of assault simply doesn’t remember that she said yes because she was so drunk, then you’ve already lost.
But here’s the honest answer kicking in again: So what? In the scheme of the gender wars, someone is going to have to lose, and Klein has chosen men, innocent men. To achieve the goal of feminist sexual empowerment without responsibility, there is no rational path that doesn’t involve someone being sacrificed at the altar of feelings. Klein has come clean: Guys, you’ve already lost.
If this is an acceptable price to pay to indulge the feelings of females that rape culture is the end of times, just as the belief that the Naxos are harbingers of the Fourth Reich justifies the Antifa’s resort to violence to some, this justifies the systemic deprivation of due process for the accused on campus. It’s the only honest argument in favor of Title IX. That’s all there is.
*For those engaged in the industry of “consulting” with colleges on campus sexual-abuse policy, practice and litigation, this is a huge pocketbook issue. As with Scott Schneider, there is a big green horse in the race and a deep conflict between law and the perpetuation of a system that’s been their bread and butter. Some argue that changes are wrong. Some split the baby. Some just spin their hardest with empty and irrelevant vagaries.