As a guy who earns his living off advising colleges how to run their campus sex tribunals to assure the guy loses while creating plausible deniability to avoid liability, and as president of ATIXA, the Association of Title IX Administrators, an association dedicated to the cause of believing the woman no matter what, Brett Sokolow has long been a primary cheerleader for his tribe, defending the inane and dishonest with rigor.
After all, without the cottage industry of campus sex policing for the sake of saving women’s feelings at the expense of facts and innocence, Title IX administrators would be constrained to get productive jobs. Because of this, Sokolow’s views haven’t been well-appreciated by anyone beyond those who benefit from the grift. Yet, in an LA Times op-ed, it turns out that Sokolow has some observations worthy of note.
The resolution system schools have in place for sexual misconduct allegations could surely benefit from some changes and refinements, but the proposed changes won’t solve the unfairness problem. That is because the OCR has confused procedural unfairness with substantive unfairness, and fixing the procedures alone will not result in more accurate substantive outcomes.
Better substantive decisions will depend on having neutral and impartial decision makers in place, and then training them comprehensively in the fundamentals of good decision making.
To begin with, Sokolow admits that the system has an “unfairness problem,” which might seem akin to admitting that the sun shines during the day but is quite the critical observation. An unfair “resolution system” is a failed system. More importantly, Sokolow concedes that his own tribe, Title IX administrators, are the problem: the system fails because the investigators and decision makers are neither neutral nor impartial.
He’s right. Sokolow is absolutely right. No system can work when the only goal of the investigators and decision makers is to convict the accused. A system run by biased decision makers, bent on believing the women and convicting men no matter what, can’t be fixed by procedural due process if they’re going to convict no matter what. When the facts don’t matter, neither do the procedures. Give Sokolow credit for conceding that his tribe is terminally biased and no process can fix their anti-male animus.
Due process has two components, substantive and procedural. The latter requires fair procedures that enable a fair and impartial decision maker to come to a fair resolution. But the former, substantive due process, requires the decision makers to be fair and impartial. Sokolow’s correct observation about the bias of his tribe, unfortunately, is where his accuracy skids to a halt.
…training them comprehensively in the fundamentals of good decision making.
Can prejudiced people be “comprehensively trained” not to be prejudiced? Sokolow hides behind the meaningless phrase, “good decision making,” when what would have been the takeaway from an impartial observer is unbiased decision making. Surely, no one promotes “bad decision making” as a desired outcome, but what distinguishes good from bad is the question. When it comes to resolution of accusations of sexual assault and rape, it begins with an impartial decision maker. Only then does it move on to how to fairly decide facts, determine credibility, dismiss fallacious arguments and reach a sound decision.
Of course, that’s where Sokolow’s pecuniary interest comes into play, as he makes his living training Title IX administrators using the trauma-informed fallacy, that no matter what the accuser says or remembers, she’s telling the truth. That’s “good decision making” if the only good decision is convicting the male accused student.
While Sokolow’s takeaway may reflect the facile and self-serving outcome that informs his financially-motivated reasoning, at least he deserves credit for saying it out loud: The decision makers are so biased and partial that no amount of procedural due process is going to improve the fairness of the outcome.
But that’s only half the due process question. Assuming it’s possible for colleges to run their “resolution systems” with investigators and decision makers who aren’t so biased that no amount of procedural fairness will matter, what then?
They would, for example, require schools to provide immediate, detailed notice of the allegations in writing before any school interview of the accused. In a standard criminal process — which this is not — the police can question a suspect about alleged criminal activity without notice. The OCR says this is a needed due process protection. Except it isn’t. There is no reason to require a more rigid process under Title IX than is required by law in criminal investigations.
Obviously, Sokolow lacks minimal knowledge of criminal law, as he’s apparently unaware of Miranda Warnings and conflates pre-accusation investigation with an investigation already dedicated to assuring the conviction of the male student.
Currently, most colleges resolve sexual misconduct allegations through robust investigations.
Calling investigations “robust” doesn’t make them so, even if the word doesn’t really bear much relation to what investigations should be. Indeed, they’re not “investigations” at all, in the sense of attempting to ascertain what happened, but rather a compelled opportunity to gather the “evidence” needed to convict the accused. The only “robust” thing about them is the contorted rationalizations as to why the evidence of innocence should be ignored while the lack of evidence of guilt proves the trauma suffered by the woman.
The proposed rules would also require live hearings before impartial decision makers to review the results of the investigation, interview witnesses and review evidence. However, there is no data to show that live hearings are less prone to error than results produced by non-adversarial investigations.
To put this in some remotely rational context, this would be akin to a jury at trial being told by the cops that the defendant was guilty without the defendant having an opportunity to challenge the police conclusion. But there’s no data? Maybe that’s because of the hundreds of years of experience with public trials, as opposed to star chambers, and the somewhat obvious fact that the absence of a live hearing means the “good decision makers” never hear anything but the Title IX investigators conclusion that they male student is GUILTY, GUILTY, GUILTY. How much data would Sokolow need to grasp that’s not a process prone to a fair outcome?
There is no research to indicate that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct case a full and fair opportunity to review and contest all evidence prior to a final determination. In fact, because cross-examination relies on talented questioning and sophisticated rules of evidence, it is susceptible to great variations in its effectiveness.
As ridiculous as it is to argue that cross-examination doesn’t produce more accurate results, Sokolow makes a critical observation, that its utility as a tool for accuracy “relies on talented questioning and sophisticated rules of evidence.” Cross in the hands of a college sophomore isn’t cross in the hands of an experience trial lawyer. Hearsay in the hands of a Art History prof isn’t the same as hearsay in the hands of a judge.
Sokolow’s op-ed reflects the surprising fact that he’s not unaware of how unfair, how ineffective, how biased, this “informal” system is that results in the explusion of innocent male students, forfeits hundreds of thousands of dollars of tuition, taints them in perpetuity as sex offenders and destroys lives. That Sokolow’s takeaway is since it can’t be made fair, it should be largely left to do its harm and changes that could improve its outcome won’t be sufficiently effective, so why bother?
But when was the last time making any system more complex and bureaucratic made it better?
It’s like the answer to “how long must a person’s legs be”? Long enough to reach the ground. The “complexity” of this “resolution system” is whatever is needed to make it viable. Sokolow’s admissions, that the system can’t work because his tribe is too biased and the procedural tools in the hands of untalented college students and unsophisticated academics will fail anyway, aren’t an argument to keep a bad system bad, even though that’s his less than astute conclusion.
The only rational takeaway is that this “informal” campus sex system can’t work, can’t produce fair results and can’t be fixed without extreme changes to provide both substantive and procedural due process. As Brett Sokolow says, the system is a massive failure. That might be good enough for him, but the Constitution and fair-minded people demand better.