On the heels of the Eighth Circuit’s rejection of the facile argument that while colleges are concededly biased, it’s not a bias against male students but a bias in favor of “survivors,” the Tenth Circuit has finally found its way over the hump and similarly refused to play the game anymore.
The decision in the case of “John Doe,” as the former student is identified, comes one year after the U.S. Court of Appeals for the 10th Circuit dismissed a similar lawsuit from a male student who also claimed DU’s investigatory process was biased against men and toward women. At the time, a three-judge appellate panel decided that a process generally favoring victims who were largely women did not necessarily equate to discrimination against men.
“While a one-sided investigation, standing alone, might only raise a reasonable inference of anti-complainant bias,” wrote Chief Judge Timothy M. Tymkovich in the 10th Circuit’s June 15 opinion, “where there is a one-sided investigation plus some evidence that sex may have played a role in a school’s disciplinary decision, it should be up to a jury to determine whether the school’s bias was based on a protected trait.”
The combination of public pressure, from Joe Biden who was disingenuously the main cheerleader in the federal “It’s On Us” campaign, on down to the Take Back The Night marches, the trauma-informed investigations that provided a ready excuse for every evidentiary failing of an accuser, the false statistics about false accusations and even the ubiquitous use of the word “survivor” to describe an accuser before any determination was made that misconduct occurred, has served to destroy a great many lives. Courts resisted and deferred to campus excuses, but as the number of students harmed has grown, the railroading is no longer being ignored or rationalized away.
How, one can fairly ask, can colleges and universities persist in their bias, knowing that they are destroying lives by denying the accused a fair and impartial process to defend themselves? The assumption is that college administrators are either heartless fiends who care nothing about the fairness denied the accused, but only about appeasing the outrage of the “survivors” who march on their campuses demanding they be believed, no matter what.
Her premise was that our campuses have been overrun by second-wave feminists who have turned their academic passions into incubators of activism. As she spoke, I imagined the faces of my former faculty colleagues — smart, capable, committed feminists who indeed create in their classrooms, if not incubators, something of a neonatal ICU for their students’ own passions.
Burdette was listening to Cathy Young speak about the perspective of “feminists who have turned their academic passions into incubators of activism” such that they truly believed they were on the side of righteousness by believing the woman, presuming them “survivors” and, therefore, making sure their rapists were convicted and punished.
I thought about the specific faculty members I had relied on to serve as advocates, investigators, hearing officers, the ones who willingly gave time and energy to our efforts to stop students from harassing and assaulting one another. Is that who she was talking about? As a dean of students, I had been indebted to these colleagues. Never once had I heard their motives questioned. I certainly had never questioned them.
When everyone around you shares your values, sensibilities and goals, how could they possibly be ill-motivated or, god forbid, wrong?
It was no coincidence, Young claimed, that the rise of women’s studies programs on college campuses coincided with the arrival of women’s centers and victims’ advocate services.
“Yes, but that’s a good thing, right?” So asked a troubled voice in my head. I mean, I taught in women’s studies programs. I had started a women’s center on one campus, for God’s sake. I was one of those higher-education professionals that Young was critiquing.
Burdette’s experience, both as dean of students and at a conference where she was surrounded by those harmed with the best of intentions, as far as she was concerned, gave rise to a crack in her certainty that the “survivors” were on the side of justice.
When I wrote “The Dean of Sexual Assault,” in 2015, I believed that higher-ed professionals occupied a moral high ground in the war against sexual assault. My weekend in Phoenix challenged all of that. I now find myself wondering: How much damage have my colleagues and I done?
While it’s good that circuits are finally coming around to the realization that this is a battle of the genders on the part of college admins and campus activists wrapped up in myriad excuses, Burdette’s minor epiphany reflects the far deeper problem that those making the decisions in the first place, destroying the lives that later seek compensation through the legal system, are a cohesive group in their own echo chamber of moral superiority. They don’t believe they are biased, but that they are serving a higher cause. They don’t believe they are harming male students, but vindicating the feelings of female students. They believe they are on the side of morality and justice.
As Catherine Lhamon, if confirmed by the Senate as will almost certainly be the case, is put back in charge of the Department of Education’s Office of Civil Rights, and deconstructs the minimal protections provided by the DeVos Title IX regulations, the cohort of campus investigators and adjudicators will cheer as the burden of giving the accused half a chance at defending themselves is lifted from their shoulders. That courts are recognizing the constitutional error of denying the accused due process is good. That Burdette’s friends on campus have yet to realize there’s no morality in convicting the innocent remains unchanged.