[KC Johnson] Campus due process comments and responses

The quality of the commenters is one of the most enjoyable aspects of posting here. So, a few responses (R) to comments (C) below:

C: “Another facet of campus sexual assault that is rarely discussed is the strong evidence that young women are far more likely to be sexually assaulted if they are not students than if they are (look at the National Crime Victimization Survey). Even if campus tribunals were fair and accurate, any ‘solution’ that focuses on college campuses alone will neglect the vast majority of sexual assault victims; in fact, by removing rapists from colleges and placing them among non-student populations, this system endangers those who already suffer more. This argument should resonate among those who focus on equity, since policies targeting campus sexual assault benefit disproportionately wealthy and white populations at the expense of poor and non-white populations. This is another reason to use police and the courts for investigation, adjudication, and punishment, and to use universities for prevention, education, and counselling. Policies improving the way the justice system handles sexual assault will benefit society as a whole, not just students.”

R: This is a very important point, in multiple respects. First, as the survey mentioned above notes, and despite the suggestion of activists on this issue such as Sen. Kirsten Gillibrand (D-N.Y.), non-college women are at greater risk of sexual assault than are college women. The fate of these women seemed of little interest to both the Obama administration and the key congressional players on this issue.

The equity issue works in another way. Though the actual percentage is unclear, most female undergraduates (a portion of whom are part-time students) don’t live on campus. Of that constituency, those who are sexual assault victims, therefore, are far more likely than a student at a four-year, residential college to have as a perpetrator a non-student, with an attack outside of campus jurisdiction. These students are part of the “1 in 5” figure the Obama administration used, yet their fates seemed of little interest to the campus movement.

Finally, from an equity standpoint, the campus rape frenzy is, in its most basic form, a movement of the elite, for the elite. As Stuart and I discuss in the book, Clery Act figures show that allegations of campus sexual assault are far higher (by a factor of six, in some cases) at Ivy League universities or elite liberal arts colleges than at nearby institutions. By focusing almost exclusively on allegations of sexual assault handled through campus tribunals, the Obama administration and its allies wound up, whether intending to do so or not, focusing disproportionately on the nation’s elite institutions.

C: “ ‘The Campus Rape Frenzy’ as a title implies that the claims are rape are bogus. That is an unwarranted inference . . . [T]o then imply that the people who claimed rape are liars because the accused were not found guilty is pretty vile.”

R: The book makes no such claim. In fact, Stuart and I go to great lengths not to speculate about the motivations or mind-set of most accusers. The only accuser in the book whom we describe as lying is “Jackie,” from the Rolling Stone case, who claimed to have been raped by a person who, it turns out, doesn’t exist. We do use the word in a quote from the Amherst accuser, who searched for a cover story about having sex with her roommate’s boyfriend. She texted that the male student she’d eventually accuse of sexual assault was “too drunk to make a good lie out of shit.” We also use the word in quoting from a decision in the Ohio State case, where Judge James Graham ruled that an accused student’s lawsuit could go forward, since it was possible that OSU “Administrators knew that [the accuser] lied about the timing of her accommodation at the hearing and permitted her testimony to stand unrebutted.”

C: “You understand legal-ese, right? That’s where the conversation, below, is focused on. Stating that something is a requirement, etc., obfuscates the issues. It is entirely correct to say that the letter is coercive — that’s a great argument. Saying that the letter makes any requirements (APA, etc.) is incorrect . . . That is why precision matters in these issues. Well, it used to on this blog. Now we just let journalists in to hawk their latest red meat book”

R: This comment would be better directed at former OCR head Catherine Lhamon, who informed the Senate HELP Committee in 2014 that she expected colleges and universities to comply with OCR’s Title IX guidance, even though OCR had elected not to issue it as a regulation in compliance with APA. (Sen. Lamar Alexander, holding up the “Dear Colleague” letter: “You require [emphasis added] 6,000 institutions to comply with this, correct?” OCR head Lhamon: “We do.”)

To the extent you’re arguing that OCR improperly issued a de facto regulation as guidance, I agree, and hope that the lawsuits ch