Over the past couple of days, there have been a great many deep-dive articles, editorials and op-eds written over the silly little Title IX sexual misconduct problems I’ve been writing about for years. Poor KC Johnson probably has terminal writer’s cramp by now. All are valued academics and pundits, and all are standing atop far larger soapboxes than SJ.

I should be thrilled. After all, misery loves company, But I’m neither miserable nor mind being a lone voice, as I was for years before others hopped aboard.

Jeannie Suk Gersen’s New Yorker article sums up one of the problems that have been taken for granted by so many of those who are speaking out now in support of ending the campus star chambers.

Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.

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They don’t think of themselves as rich, as they’re not quite the One Percenters, the mega-wealthy who own private planes and 300-foot-long yachts. But they don’t miss any meals.

My interviewees never talked about themselves as “rich” or “upper class,” often preferring terms like “comfortable” or “fortunate.” Some even identified as “middle class” or “in the middle,” typically comparing themselves with the super-wealthy, who are especially prominent in New York City, rather than to those with less.

When I used the word “affluent” in an email to a stay-at-home mom with a $2.5 million household income, a house in the Hamptons and a child in private school, she almost canceled the interview, she told me later. Real affluence, she said, belonged to her friends who traveled on a private plane.

These are the deeply-progressive, socially-conscious, Democratic-voting working class. And their empathy cannot be understated. Continue reading →

Far too often, the issue at hand is whether an individual, or too often his estate, can survive a Qualified Immunity challenge to a suit against police officers for the deprivation of constitutional rights. The concept was crafted entirely by judicial fiat; it is nowhere to be found in the Constitution or statutes, but was manufactured by the Supreme Court to protect police.

And far too often, Qualified Immunity prevails, preventing recourse despite flagrant constitutional violations. When a plaintiff prevails, however, there is joy in Mudville. But getting the opportunity to bat doesn’t mean the swing will hit it out of the park. There is still a rather huge obstacle that needs to be overcome, and that’s the trial of the underlying claim. Though a cop was denied QI, it doesn’t assure vindication, even when he shoots a guy in the back.

The jury in U.S. District Judge Gonzalo Curiel’s courtroom found Kristopher Walb acted reasonably when he shot Angel Lopez in the back, killing him as he fled from SWAT officers pursuing him in January 2013 for a parole violation.

Lopez’s family has sued Walb and top brass at the San Diego Police Department multiple times, though many of their claims have been dismissed. But a Ninth Circuit panel ruled in October last year that Walb should stand trial for wrongful death and civil rights claims, as physical evidence showed that “Lopez was not facing officers, did not make a threatening gesture and was in the process of complying with the officers’ commands to get down when he was shot.”

Easy case? Maybe not. Continue reading →

The “major speech” by Department of Education Secretary Betsy DeVos began by hitting all the right notes.

We know this much to be true: one rape is one too many.

One assault is one too many.

One aggressive act of harassment is one too many.

This is the standard “do it for the children” speech that has served us so well in striking fear in our hearts so that we accept the premise that no deprivation is too harsh. But then DeVos added: Continue reading →

In Millard v. Rankin, an as-applied challenge, Colorado Senior District Judge Richard Matsch rejected the pretty ribbons the legislature wrapped around the Sex Offender Registry Act. Applying the “intents-effects” test to the law, the court held that it was unconstitutional under the Eighth Amendment.

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court employed an “intent-effects” analytical framework to determine whether Alaska’s sex offender registration statute was punitive. The Court stated that it would first consider whether the legislative intent was to impose punishment; if so, “that ends the inquiry.” Id. at 92. If the intent was to enact a statutory scheme that is civil and non-punitive, however, the Court stated that it must further examine whether the statutory scheme is so punitive in purpose or effect as to negate the legislative intention to deem it “civil.” Id. In making the “effects” analysis, the Court considered five of the seven factors employed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):

The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.

Smith v. Doe, 538 U.S. at 97. The two additional factors considered in Kennedy were [6] whether the statute’s requirements come into play only on a finding of scienter; and [7] whether the behavior to which it applies is already a crime.

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What are friends for? Shooting, when the cop brain goes into survival mode.

Andy Grimm, who knows Shaw, said he does not want the officer to be fired, the paper reported.

“I know Jake,” he said. “I like Jake.”

And Deputy Jake Shaw likes Andy Grimm too.

“We know the deputy. This is a small town of 5,000 people … We know the deputies. We work with them on a daily basis. We have an excellent relationship with them,” he said.

So a big hug will fix everything? Not the bullet holes in Andy Grimm’s body. Continue reading →

I still remember when I finally said, “screw it.” It was during the comments* to this post about Revenge Porn Princess Mary Anne Franks calling Techdirt’s Mike Masnick a liar. As I read my responses again, I cringed. Back then, I still tried to be relatively inoffensive to the delicate sensibilities of commenters. But then I realized it wasn’t possible.

Unlike some folks, it made no sense to me to deliberately provoke the wrath of the insipid. It came anyway, as demonstrated by Franks’ immediate resort to name-calling against anyone who pointed out that she was intellectually bankrupt. But this wasn’t some male against female thing. Indeed, my head remains in the old days of equality, where women and men were equal, meaning that both could be brilliant or idiots, as deserved, and if a woman was full of shit, you said so. Women were tougher then.

But this was the post that ended it for me. It’s not that I chose to use words designed to provoke unnecessarily, but that there was no avoiding the fact that anything shy of being an obsequious sycophantic ally to the cause would make me a shitlord regardless of what I had to say. And there was no way I was going to temper thoughts to align with the girls’ feelings. So, screw it.

A Bloomberg Views writer, Noah Smith, who apparently has deep cred among the -isms, wrote a series of twits which reflects his partial epiphany. Continue reading →

On this, Laura Dunn is absolutely right. Dunn is a lawyer and executive director of SurvJustice, a “survivor legal advocacy group.” Her job as ED isn’t to be fair, or even right, but to do everything in her power to further the goals of the organization. And so she tried:

Dunn criticized other FIRE proposals, such as the “clearly stated presumption of innocence.”

“A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn wrote in an email. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.”

Dunn also wrote that she “100 percent” disagreed with a student’s right to have an attorney present.

“This is not court,” she wrote.

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Ken White called in on the twitters.

Granted, it took a few days before the answer appeared, but the winner is . . . the Daily Caller.

Arrested Utah Nurse Had It Coming

It would be hard to come up with a worse headline, but that’s on whoever dreamed up this clickbait. But the post itself? That falls on the shoulders of the author. Continue reading →

Who would have guessed that an op-ed by University of Pennsylvania law professor Amy Wax, with San Diego lawprof Larry Alexander, would have raised such a ruckus by extolling the virtues of traditional American norms?

[18] Law professors argue colleagues’ ‘bourgeois’ ideal is racist and classist

Guest Column by five Penn Law professors | Notions of ‘bourgeois’ cultural superiority are based on bad history

Guest Column by 54 Penn students & alumni | Statement on Amy Wax and Charlottesville

Guest Column by 33 Penn Law faculty members | Open letter to the University of Pennsylvania community

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