I have no clue why someone decided to send me a review copy of Alexandra Brodsky’s new book. She was a founder of Know Your IX, a self-described “survivor” advocacy organization that has propounded the worst of the lies and disinformation upon which the campus sex tribunals rely. I’ve mentioned her here a time or two, but rarely favorably. Yet, the book came in the mail.
Having read some of Brodsky’s writing in the past, and it having ranged from the depth one would expect of a C+ sophomore at a third-rate college to a facile effort to dissemble shamelessly for the cause, I opened the book with reluctance. It did not take long before my head began to pound and my eyes began to bleed.
As a lawyer, I get frustrated when public discourse gets so much wrong about what due process actually means, especially when legalese serves as a cudgel to discourage debate. I’ve seen too many thoughtful Twitter conversations about the hard ethics of how to treat sexual harassment allegations cut off by a passionate but legally indefensible argument that “due process” provides a clear, legal answer — even when it does not, technically, apply at all. By disguising moral arguments about fairness in legalistic terms, such interlocutions can make it difficult for other to engage.
What’s this Yale Law grad up to with this nonsensical gibberish? Brodsky is trying to shift her position from the extreme lunatic fringe of “survivor” activists to being an “honest broker” for both “victim” and accused. This book, through the use of vague anecdotes of dubious accuracy, combined with pseudo-legal “analysis” that would make a real lawyer’s head explode, is posturing for the purpose of turning due process into some squishy goo that will trick the unwary and unduly passionate into believing that the hundreds of federal court decisions very specifically holding what process was due are mere suggestions, to be shrugged off when the “survivor” is sad enough according to that voice of nouvelle moderation and reason, the new and improved Brodsky.
This is part of a scheme she’s attempting to perpetrate, as reflected in her claim of getting along with “both sides.”
Because of our overlapping interest in fairness for all students, Know Your IX was sometimes able to forge fruitful relationships with members of “the other side.” Away from the media, with room to admit ambiguity and uncertainty, we had conversations with advocates for alleged student harassers. When it came down to it, we could often find substantial agreement and distill what we actually disagreed about to no more than a few logistical questions. Many of us favored the same model for student disciplinary procedures, an “inquisitorial” hearing in which students can question one another through a neutral intermediary. Those conversations gave me hope that, with care and good faith, consensus was within reach. We could build procedures that treated all students equitably and with dignity.
And who are these mysterious folks from “the other side” who share her love of the “inquisitorial” model? This is Brodsky’s version of the “Canadian girlfriend,” a steaming pile of bullshit. But I digress.
Alexandra Brodsky is pretending to grow up, out of her lunatic fringe stage and into the mature reasonable person stage, and wants us to accept that she’s shed her advocacy role as a flaming hysteric and shameless liar and now embrace her as a voice of reason and fairness.
There are four principles of due process that, in my view, are particularly important for our debates about sexual harassment.
- Due process takes many forms.
- Due process depends on the stakes.
- Due process involves a balancing test.
- Due process does not change based on the specifics of the allegations.
The last of these “principles” sounds almost principle-ish, except that’s not where Brodsky takes it. Rather, her point is that accusing a male student of rape sounds like it’s a criminal accusation, but since it’s in a campus sex tribunal, it’s just another civil admin proceeding. No biggie, and don’t let that nasty “rape” word concern you. Nothing to see here.
But how, you may wonder, will this effort to reinvent herself play with the ignorant masses? Michelle Goldberg at the New York Times almost bought it.
Where “Sexual Justice” is clarifying and instructive is as an intervention into debates about who should handle sexual assault allegations, what standards of evidence should be used and what protections students should be afforded. Brodsky offers a convincing rejoinder to those who question why schools are investigating sexual abuse in the first place, rather than simply calling the police. She emphasizes that many institutions have internal disciplinary processes that work differently than criminal courts. Students who commit vandalism or get in fights are regularly sanctioned by their schools, and no one considers it an outrage against due process.
Brodsky understands, however, that nonjudicial processes for handling sexual assault claims will be discredited if they seem like kangaroo courts. Accused people, she writes, should be clearly informed of the charges against them. Both parties to a conflict should, ideally, have people assigned to them to help them navigate the system, and each should be given the chance to tell his or her story, present evidence and rebut the other side’s account. Brodsky’s book’s “mantra,” she writes, is that sexual abuse allegations should be subject to “the same procedures used for all other misconduct that implicates similar interests and similar stakes.”
To be fair, Goldberg is no lawyer, so it’s somewhat understandable that she could be so easily deceived, particularly when she wants to be. But she swallows whole the simplistic nonsense that being labeled a rapist in perpetuity is the same as having to write “I will not spray paint ‘Black Lives Matter on the dean’s front door'” one hundred times on a laptop.
And as eludes Goldberg, due process isn’t about the accused having a full and fair opportunity to challenge such a heinous accusation, but creating the appearance of just enough due process to make the Inquisition look enough less kangaroo-y to slip it past the unwary or deluded. After all, Brodsky’s a lawyer, so anything she says about law must be real because lawyers aren’t allowed to just spew utter nonsense, right?
But even Goldberg, who concedes she’s in the tribe, can’t quite be convinced.
Perhaps this is faint praise. I think I share Brodsky’s politics — I’m broadly sympathetic to the movement she helped catalyze, but also take its civil libertarian critics seriously — and was frustrated by how, despite her respect for nuance, she elides some difficult issues. Part of the problem is her decision to mostly gloss over the expanded conceptions of sexual assault that are key to many campus controversies. (She does say, in her conclusion, “Definitions of sexual harassment should be neither under- nor over-inclusive.”) Usually, it is unfair to criticize a book for what’s not in it, but it’s hard to evaluate whether institutional discipline is just without understanding what people are being disciplined for.
Brodsky plays it as vague and fuzzy as possible, trying so very hard to overcome her history by feigning just enough concern for the accused to convince her team that she can be trusted. But even Goldberg realized that Brodsky was glossing over the hard details to create the appearance that she’s not as biased as anyone could be. But she is, and this book can’t conceal that she’s either a bad lawyer or completely full of shit. Or both.
Alexandra Brodsky wrote a book to rehabilitate herself in order to have a seat at the table now that the Title IX scam perpetrated by Lhamon isn’t going to fly anymore. In this way, she tries to create some cred where she has earned nothing but disdain so that she can push her “inquisitorial” agenda against “the other sides'” demands for due process. Don’t buy this steaming pile of bullshit. Don’t buy this book.
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Sometimes, the central character of a book lies in what’s not in it. Much like an offering statement that would have been lawful but for the material omissions.
I like Marvin Gaye’s version better.
Even reading Brodsky’s excerpts nearly makes my head explode. Does she seriously not get it, or does she know what she’s doing?
The Title IX campus tribunal debate will never end, ever, until people like Brodsky and those who “share her politics” grasp the magnitude of a finding of “responsible” for sexual misconduct (let alone, sexual assault). It is often an academic, social, and professional death sentence. It is life destroying. And when a classmate, employer, date, or friend learns of such a finding, there is never any room for context, grey area, or redemption. And no one cares (or cares to learn) that campus hearings aren’t criminal courts. “Sexual misconduct” is sexual misconduct. The only offense (criminal or otherwise) I can think of with an equivalent stigma is child abuse. This is the society Brodsky and her “allies” have created.
As long as this stigma exists and as long as society is so quick to brandish scarlet letters, so unwilling to offer paths to redemption or acknowledge the difference between an unwanted hug and forcible rape, these battles will be vicious and controversial. The least we can do is offer fairness before destroying lives.
I’m sorry. This just set me off today.
That’s the problem, she very much gets it and knows very well what she’s doing. She may be a poor writer, but she’s not stupid. She knows.
She has to burn the heathens in order to save the heathens.
This argument could be made against civil sexual assault claims. Would you prefer there is no title ix and instead complainants file as civil pro se plaintiffs vs pro se defendants? That would be on the public record or even google forever, stigma and all.
A legal system that provides substantial due process and relatively unbiased judges would be vastly better. But of course, this is obvious to anyone with any clue about law.
> now that the Title IX scam perpetrated by Lhamon isn’t going to fly anymore
I hope not, but I had thought the Biden Administration was hoping to bring much of it back with a reversal of the DeVos reforms?
No doubt Biden/Lhamon will try, but they still have a great many circuit court opinions requiring minimal due process. What Brodsky seeks to do is be part of the “conversation” to make sure they are as limited as possible.
Seems to me you have three books on deck?
What’s the hold up?
Got the photo folks that can glam you up nicely for the back jacket cover…
The juxtaposition of “After all, Brodsky’s a lawyer, so anything she says about law must be real because lawyers aren’t allowed to just spew utter nonsense, right?” with the next post re: the Kraken is particularly appropriate.
Years ago, I would argue here about the value of integrity for lawyers, that once it was lost, it was gone and no one would trust you again. Apparently, that’s now an old man’s sentiment and the new approach in the life and death battle to win at all costs is to lie your ass off, get as many of the idiots to believe you as possible and win. If you sense a theme here, you’re right.
This statement by her is true tho: “Due process does not change based on the specifics of the allegations”
You’re a lawyer, so you know that someone sued for sexual battery has the same rights as someone sued for breach of contract and that someone criminally prosecuted for theft has the same rights as someone criminally prosecuted for child molestation. Because the stakes are money vs imprisonment. Case law backs this up.
I realize you’re a non-lawyer repeating nonsense you believe, so I’ll address this once because so many blithering idiots have been misled by simplistic lies that they, like you, have an infantile grasp of law. And blithering idiots would do well not to come to a law blog and play the “you’re a lawyer” card when they are the stupidest person in the room.
No, it’s not true in the way you and Brodsky try to frame it. Whether in civil or criminal cases, there is a long list of due process requirements, some being more extensive in civil than criminal such as interrogatories and depositions, then motions to dismiss, motions for summary judgment, interlocutory appeals and others, which provide vastly more discovery and opportunity to challenge than a crim deft gets. The burden of proof is always on the accusing party. The only significant distinction is in burden of proof, from preponderance to beyond a reasonable doubt. But in Title IX proceedings, the outcomes are punitive (which is what distinguishes civil from criminal), vastly more harsh than misdemeanors and lower tier felonies.
So I’m a lawyer. And you’re the delusional idiot people like Brodsky play to because you’re too stupid to grasp how little you understand and yet bold enough to come here and put your ignorance on display.
How are they vastly more harsh? Can you think of any reasons the courts disagree with your position?
Doubling down on stupid is a bad look. Get convicted for a misdemeanor, you get a fine, maybe some community service, if not an ACD. Lose at a campus sex tribunal, and you’re expelled, your future career that you’ve worked toward for many years is dead, your hundreds of thousands in tuition (or debt) lost, you’re labeled a sex offender in perpetuity and your future employment will be grossly constrained by your having been expelled from college as a rapist.
See how easy that was? If you had a clue what you were talking about, you probably could have figured this out all by yourself.
[Kid, spending time explaining the obvious to you isn’t nearly as much fun for me as it is for you. We’re lawyers here. We know how all this works for real not the horseshit some activist told you. The excuses floating through your head really aren’t as fascinating to lawyers as they are to your grievance study group. You’ve already gotten way more space than you deserve here. Go sell it elsewhere. Bye.]
Can you think of any reason why you are so flagrantly wrong about the law and the courts, Brett? Can you think of any reason why you are so confident in your ignorance?
You’re like the anti-vaxxers screaming that store owners can’t ask them if they’ve been vaccinated without violating “HIPPA.” That’s how you sound to lawyers. Do you not get that?
You know the answer. This is the perpetual problem with non-lawyers, armed with an abundance of simplistic ideological perspective (from passionate folks like Brodsky) and not a clue what they’re talking about. To lawyers, they come off like clowns. They think they’re brilliant.
Let me guess, fake email too, because he’s a genius.
Of course. Children only throw pebbles from behind rocks.
Are you familiar with Dunning-Kruger?
On the bright side, it’s now clear who Brodsky’s target audience is, people who are exceptionally credulous and supremely confident in their ignorance. That stunning combination of certainty and cluelessness . Good to know.
If you have the capacity to actually learn something, what SHG explained might free your head from your ass. The distinction between civil and criminal is compensatory v. punitive, not money v. prison. It’s not your fault that people like Brodsky lied to you. It is your fault that you chose to believe liars.
I m not a lawyer, much less studied one. However, as a research scientist, I do read a lot and know to discern good writing from an aneurysm-inducing garbage. The paragraphs that you quote from Brodsky gave me a headache that is akin to our glorious drop-out queen Elizabeth Holme’s quote:
“a chemistry is performed so that a chemical reaction occurs and generates a signal from the chemical interaction with the sample, which is translated into a result, which is then reviewed by certified laboratory personnel.”
America is approaching Issac Asimov’s dystopia. By the way, you earned a new reader.