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A few years ago, a student of mine, Natalie Weill, and I won the first expulsion for rape in the history of the University of Wisconsin-Madison. During a harrowing process that ground on for six months, the Wisconsin deans insisted they had an official “philosophy” of not expelling rapists. Natalie and I entered a surreal labyrinth of institutional betrayal, cover-ups and attempts by the deans to silence and stall us. We won the expulsion only by tenaciously appealing to Natalie’s civil rights under Title IX, the landmark gender equity law. In 2011 the Obama administration, shocked by sexual assault statistics, had sent a “Dear Colleague Letter” to campus administrators on how to comply with Title IX. But in September this year, Betsy DeVos, Trump’s education secretary, moved to rescind the Title IX protections, precisely those rights that allowed Natalie and countless others to continue their education without constantly facing their perpetrators on campus. Dana Bolger, co-founder of Know Your IX, warned that DeVos’s decision would leave survivors “virtually without protections on campus.” In a trenchant speech, DeVos argued that the Obama administration had used “intimidation and coercion” to force colleges to adopt measures that robbed accused students of their rights. Opponents of Title IX like DeVos persistently claim, without offering evidence, that Title IX is biased against the accused. But as Natalie and I discovered, the Wisconsin process was entirely biased in favor of the accused, the unequal rights codified in Chapter 17. As Dean Kevin Helmkamp admitted: “We are locked into a system that is about the rights of the accused.” DeVos’s move was not a solo decision. The attack on Title IX marks the ominous culmination of a coordinated campaign four decades in the making by a coterie of free-market activists including the Koch Institute, the American Legislative Exchange Council (ALEC), the Foundation For Individual Rights in Education (FIRE), Earl Ehrhart, the DeVos family, and the Goldwater Institute, among others. The campaign has gained epochal momentum under Donald Trump, who called the Department of Education “massive and it can be largely eliminated.”

Magical Thinking Why is society so ready to sympathize with the perpetrator and disbelieve the rape victim? Believing that the perpetrator is innocent, or that he is in the thrall of drink, or that he is basically well-intentioned and guilty only of making a harmless mistake, all these are forms of magical thinking. Magical thinking about rape allows people to believe in a world that is basically good and wholesome and safe. By speaking out, the rape victim tears the filmy web of magical thinking to tatters. And so the rape victim cannot be forgiven and must be banished, or silenced, or ostracized. For centuries, rape victims have been blamed and shamed, flogged and beheaded, burned alive, buried alive, tongues cut out, driven out, and almost always disbelieved. How much easier to drown and disown them, and exonerate the perpetrators. The rape survivor demands that we accept that perpetrators are not exceptional monsters, they are just the ordinary people we know. They are our everyday familiars wearing bathrobes, who turn out, with unspeakable suddenness, to be utter and forever strangers. Magical thinking allows us to believe that the world is safe if we wear the right clothes, walk the right way, go to the right places, walk home with the right person. Rape survivors hold up a dark, broken mirror to society that reflects a world without limits, revealing our deepest fears about the fragility of our world, a world where magical thinking is not enough to protect one from power abused with impunity.

Natalie’s Hearing Natalie was raped by a student she barely knew. Call him Tom Chancy. They were not on a date. There was no alcohol, nor would it have mattered if there were. Natalie was a nursing student who happened to witness Chancy hit by a car. When she visited Chancy to change his bandages, he attacked her so violently that for two weeks she had to ride her bike standing up. Natalie got findings of “sexual assault” at Planned Parenthood and Chancy left incriminating text messages. But Assistant Dean Tonya Schmidt imposed a No Contact Directive (a restraining order) on Natalie, while for seven months she inexplicably neglected to place any restraining order on Chancy himself, leaving Natalie exposed to his traumatizing presence in the library, cafes, buses, and streets of Madison in direct violation of Title IX. The deans pressured Natalie to sympathize with the rapist and feel responsible for sanctioning him. Natalie was interrogated for three traumatic hours by Dean Bain, who sanctioned Chancy with “dangerous conduct” “sexual assault,” “harassment,” and “violation of criminal law,” but the University still refused to consider expelling him. Their “philosophy” was to “rehabilitate” rapists simply by letting them remain in school. Natalie had to write a statement; the perpetrator didn’t. Chancy had access to her statement; Natalie was not allowed to see his file. I was stunned to discover Chancy had the right to decide the make-up of the hearing panel. Chancy had an attorney, contrary to the right-wing myth that respondents are not allowed legal counsel. (Since 2015 it has been federal law that all students be allowed attorneys.) Chancy had the right to cross-examine Natalie. No alleged perpetrator should ever be allowed to cross-examine a victim; that is an attorney’s mediating role. Chancy even had the right to decide whether I could accompany Natalie to the hearing. Chancy had the right to appeal the outcome; Natalie had no equal right to appeal. Then at the last minute, Chancy settled and was expelled. Chancy lives close by, his rape a secret, his life far from ruined. Under FERPA law campus hearing records are secret. Contrary to right-wing false facts, Chancy’s expulsion is not on his transcript. He can apply to other colleges without anyone knowing his predatory history. Natalie and I then filed a forty-page Title IX complaint, and Wisconsin became the one hundredth university to be brought under federal investigation. Natalie fought to empower herself and improve justice for others by changing Wisconsin policy, none of which could have happened without Title IX and the “Dear Colleague Letter.”

The Right vs. Title IX DeVos’s move to rescind the Title IX guidelines has drawn fierce, national protests from survivor advocates, women’s groups, and leading Democrats. But far from denouncing DeVos’s attack on Title IX, a media campaign of concern — not for survivors but for the accused — has done the opposite, with support for DeVos appearing even in mainstream venues like the New York Times, the Atlantic, and the New Yorker. So it is crucial to make visible the stealth campaign against Title IX that culminated in DeVos’s decision. Why would DeVos, ALEC, Koch, Earl Ehrhart, FIRE, and friends care so much about curtailing Title IX? DeVos, formerly Betsy Prince, sister of Erik Prince (founder of the notorious private contractor company Blackwater) married into the extreme-right DeVos, Amway family empire, which funnels vast sums into new-right academic organizations. DeVos also co-founded the James Madison Center for Free Speech, helping spur Citizens United. The attack on Title IX is what Jane Mayer in Dark Money calls a right-wing “beachhead” (though Mayer does not herself address Title IX): a strategy to infiltrate academia, push back Obama-era policies, undermine collective civil rights, and impose large-scale federal deregulation. Let me begin with Earl Ehrhart (R-Georgia), who you probably won’t know unless you live in Georgia, or follow Sean Hannity on Fox. Ehrhart is apparently worried that his two sons, both college students, might be accused of rape, their lives and family fortunes ruined. The chances of Ehrhart’s sons being falsely accused of rape are exceptionally remote, but Ehrhart has spent considerable amounts of money and energy trying to dismantle campus hearings and curtail Title IX. Ehrhart claims statistics about campus assault are overblown: “Universities are losing millions in settlements because they are finding out, when the facts bear out, that these are hoaxes — not all of them, but a large percentage.” Like others who make this argument, Ehrhart offers no data to back up his claim, but in April 2016, he filed a lawsuit against the Office of Civil Rights. Ehrhart says he is confident that under Trump: “There will be no separate Title IX cases.” Why? As it turns out, Ehrhart is not just a loving father. He is the former national director of ALEC. ALEC is one of the most powerful, secretive organizations in the United States. Heavily funded by the Koch and Sarah Scaife Foundations, ALEC operates by wining and dining corporate leaders and legislators behind closed doors to produce “model” blueprint bills, which state legislators introduce in their states without ALEC’s visible imprimatur. ALEC has produced hundreds of conservative bills this way. And ALEC now has Title IX in its crosshairs, with ALEC’s Ehrhart leading the way. Ehrhart’s lawyer happens to be Andrew T. Miltenberg. Newsweek called Miltenberg the “go-to lawyer” among many lawyers now filing a barrage of secretly funded lawsuits on behalf of accused male students. Huge amounts of money are being poured into these cases. Miltenberg also happens to be the lawyer for Paul Nungesser, the Columbia student accused of rape by Emma Sulkowicz. Nungesser was cleared of responsibility by a university disciplinary panel, but he sued Columbia anyway for supporting what he claims was an “outrageous display of harassment and defamation” by giving Sulkowicz academic credit for a media project about the ordeal. Columbia settled in July with Nungesser for an undisclosed amount. Next is FIRE, funded by the right-wing Koch and Sarah Scaife Foundations. The organization has attacked Title IX for years, fronting the rhetoric of free speech as camouflage for its broader political agenda. FIRE has consistently opposed the 2011 Title IX “Dear Colleague Letter”; FIRE backed a lawsuit against the Department of Education to overturn it. And FIRE has now officially endorsed DeVos’s decision to rescind it. A key person to watch here is Adam Kissell, formerly vice president of programs at FIRE. At FIRE Kissell was a fierce opponent of Title IX, taking special issue with the “preponderance of evidence” standard in campus cases (the common standard, as it happens, in civil cases). Kissell also blamed feminists for rape culture. Kissel left FIRE for the Koch Foundation, where he worked as senior program officer supporting right-wing, university investment programs. In June DeVos appointed Kissell to the Department of Education alongside Candice Jackson. At a recent Koch Institute function, Christina Hoff Summers, member of the antifeminist, Koch-funded and Koch affiliated Independent Women’s Forum (IWF), was applauded for alleging that campus speech codes treat “young women (like) fragile little birds.” The IWF has lobbied for years against sexual harassment laws, as well as the 1994 Violence Against Women Act. The IWF worked to block the Affordable Care Act and the organization has attacked Title IX. And as it happens Kellyanne Conway, counselor to President Trump, is on the IWF Board.

Standards of Evidence An increasingly common claim on the Right is that Title IX deprives accused men of due process. Candice Jackson, a top official in the Department of Education, echoed this sentiment saying that: “The accusations — 90 percent of them — fall into the category of ‘we were both drunk . . . and six months later I found myself under a Title IX investigation because she decided that our last sleeping together was not quite right.’” Jackson was later obliged to apologize. Solid evidence holds that false accusations to police are extremely rare, 2 to 8 percent of allegations, the same as other forms of violent crime. In 2011 the Dear Colleague Letter recommended that “preponderance of evidence” be used as the standard of evidence in all campus hearings. Before 2011, most colleges had already made that change anyway, with only a handful of exceptions like Princeton and Harvard using “beyond a reasonable doubt.” A recent flurry of critics of Title IX now claim that “preponderance of evidence” denies the accused due process. This issue may appear arcane; it is not, so bear with me briefly. The attack on “preponderance of evidence” is odd, because it obscures a simple but salient fact: “Preponderance of evidence” is the perfectly ordinary, normal standard of evidence used in civil cases across the United States every day. The O.J. Simpson civil case was based on “preponderance of evidence.” The Dominique Strauss-Kahn civil case was based on “preponderance of evidence.” The acclaimed TV series “Goliath” is about a civil case over illegal corporate arms dealings that uses “preponderance of evidence.” Yet no one on the Right suggests that using “preponderance of evidence” in these and other civil cases denies the accused due process. Simply put, there are two regimes of law: civil and criminal. Civil law uses “preponderance of evidence.” Preponderance simply means that evidence has to show that there is over 50 percent likelihood the crime took place. In criminal prosecution, the far more severe “beyond a reasonable doubt” is the standard of evidence with comparably more severe penalties, including incarceration. Now DeVos is demanding that colleges use the criminal justice standard of “beyond a reasonable doubt” but without the far more severe penalties of the criminal justice system. Why these discrepancies? Campus hearings deal with internal violations of college codes. Campus hearings are not criminal courts. They have no judicial power. They do not prevent students also reporting to the police or pressing criminal charges. They never “convict” anyone, and they certainly never send anyone to prison. But colleges are still under the obligation to preserve equal access to education under Title IX. Sexual assault cases on campus are civil cases, so “preponderance of evidence” is the appropriate standard. Demanding a standard of “beyond all reasonable doubt” will have a catastrophic effect on student survivors coming forward, robbing them of hope of redress or protection from perpetrators. The question is if preponderance of evidence is good enough to convict Strauss-Kahn, OJ Simpson and countless others in civil cases for a host of crimes, why is it not good enough to sanction students (with vastly lighter penalties) in college cases? Why do critics of Title IX not call to eliminate preponderance of evidence from all civil cases? And if, as they argue, there should be a higher bar of evidence under Title IX, why not call for proportionately higher sanctions for offenders?

The Rights of the Accused Before 2011, like the secret hearings of the Catholic Church and military, campus hearings comprised a hidden netherworld often rife with bureaucratic misrule and vested interests. It is critical to point out that is precisely because misconduct hearings were so broken that federal intervention under Title IX was necessary: to bring colleges into national compliance, guarantee oversight, and protect due process for all students, complainants and respondents alike. Campus hearings are typically biased against complainants not respondents. As revelations about Hollywood, the military, the Catholic Church, the TV, sports, entertainment and tech worlds amply testify, survivors are all too often silenced, discredited, and sometimes retaliated against. College penalties for sexual assault and rape are often trivial slaps on the wrist: extra essays, fines, sometimes suspensions, or, far more rarely, expulsions, with perpetrators given the green light to rape again. Most universities don’t expect traumatized victims to sue them. Cari Simon, a lawyer who represents campus survivors, told me that the reason for the increase in lawsuits by male respondents is “a mix of the feeling like they have nothing to lose, an abundance of criminal defense lawyers compared to victims’ lawyers, and a sense of entitlement that led them to feel entitled to another student’s body in the first place.” Why do administrations protect the rights of the accused? Universities have strong financial incentives to under-investigate and under-report. Administrators seek to protect their brands. No university wants to be branded the Free Rape Campus of America.

Unwanted Advances One of the most vocal supporters of the campaign against Title IX is Northwestern professor, Laura Kipnis. Her new book Unwanted Advances: Sexual Paranoia Comes to Campus warrants scrutiny as her arguments illuminate the rhetorical silhouette and political lineaments of the Right’s campaign. Kipnis has previously written fresh, bold works on topics such as pornography and adultery, much of which I found insightful and at times mordantly funny. But in Unwanted Advances, Kipnis squanders her verbal flair and charismatic wit, trading anecdote for analysis, speculation for research, and hearsay for evidence. As a result, the book is frustrating to read, a mash-up of uncorroborated claims and panoramic hyperboles. It’s easy to be irked by the excesses of the book: “Hello to campus as penal colony,” writes Kipnis. Where “male professors who become the object of someone’s fantasies are likely to end up jobless and destitute.” Where “to be fair to the men, it can be impossible to tell when someone’s blacked out.” Where “witch hunts have become an institutionalized feature of campus life.” Where there is “this demand to stop thinking entirely.” Where “the idea of rape culture has become the campus equivalent of 9/11.” Kipnis concedes: “Sure, I like stirring up trouble.” She was gratified by the attention of students protesting a controversial essay she wrote that became the book’s basis. “Let me be the first to admit that being protested has its gratifying side,” she writes. The protests gave her “national coverage,” and she claims with disarming frankness: “I soon realized my writer friends were all jealous that I’d gotten marched on and they hadn’t.” Notably, Kipnis received lavish national coverage from the Right. Kipnis became, as one interviewer put it, “the campus anti p-c poster child,” lauded in venues like Breitbart, the National Review, FIRE, Redstate, and the Federalist, as well as in the liberal media. Kipnis asserts that her embrace by the Right proves that politics is “officially incomprehensible.” But sustained cooperation between Kipnis and FIRE is demonstrable. Robert L. Shibley, FIRE’s executive director, defends Kipnis’s case in his book Twisting Title IX. And in an article for FIRE, Peter Bonilla thanks Kipnis for her “efforts” and notes how many people “found their way to FIRE, at her urging. I’ve received more than a few emails in the past couple of years that opened with a variant of ‘Laura Kipnis suggested I contact you.’” Kipnis cites Bonilla’s article and states: “I know we are on the same side of the issue.”

Historic or Hysterical? An impassioned polemic on campus sexual politics, Unwanted Advances has three core arguments. First, “feminism is broken,” claims Kipnis, “hijacked by melodrama” and “sexual hysteria.” Second, campus life has become an “accusation factory” where young women lodge false complaints against hapless men in “witch hunts.” And third, “sexual paranoia” has converted the Office of Civil Rights “into an insatiable behemoth, bloated by its own federal power grab.” Kipnis caricatures campus feminists as such “hothouse flowers that an unfunny joke is likely to cause lasting trauma.” Female students, she argues, are wilting passively in the arms of patriarchal protectionism, all the while calling every hickey harassment, every attempted kiss an assault. But the striking fact about Kipnis’s account of “broken” feminism is that she conjures it during the most momentous resurgence of feminist agency the world has seen. 2012 was the landmark year. In January, the documentary The Invisible War exposed rampant rape in the US military. In August, high school boys raping an unconscious girl in Steubenville, Ohio, went viral. In December, Jyoti Singh was gang-raped in India, dying of her dreadful injuries. In response, millions of protesters around the world found collective voice denouncing what happened. A firestorm began to roil across the media, exposing rape in politics and the military, in the entertainment and sports worlds, in war zones and prisons, in high tech and high schools and, yes, on college campuses. Then students did something extraordinary. Kipnis accuses female students of abandoning agency, “joining arms with campus administrators as the fast track to empowerment.” But they’ve done exactly the opposite. Furious with administrators for protecting their institutional reputations instead of their students’ rights, survivors bypassed obstructionist deans, invented new strategies of collaboration, taught themselves Title IX, and with unprecedented clout brought over two hundred universities under federal investigation. Anti-rape activist groups like Know Your IX, EVOC, SurvJustice, and FAR burgeoned. Men’s groups joined up. The One Billion Rising movement began. Documentaries The Hunting Ground and It Happened Here illuminated campus sexual assault. The film Spotlight highlighted rampant child abuse in the Catholic Church. At Columbia Sulkowicz “broke the shame.” In 2016, at Stanford Emily Doe was dragged unconscious behind a dumpster and raped by Brock Turner. With the support of Stanford law professor Michele Dauber and Katie Baker at Buzzfeed, Doe’s eloquent Statement went globally viral. Lady Gaga’s video “Til It Happens to You” has forty million views and counting. I call that historic. Kipnis calls it “hysterical.”

Justice Prevails The strange truth about the Kipnis story is that her Title IX case, a central part of her book and of a lawsuit against her and HarperCollins, rebuts her own arguments. Kipnis was commissioned by The Chronicle of Higher Education to write an essay on campus sexual politics. Students at Northwestern University filed a Title IX complaint because she allegedly took factual liberties regarding a serious sexual misconduct case. Peter Ludlow, an associate professor of philosophy at Northwestern, had been charged with sexually harassing two of his students. Ludlow abruptly resigned during his termination hearing and moved to Mexico. Kipnis befriended Ludlow and a core part of her book engages the case. Kipnis makes some startling admissions about what she called in a second essay for The Chronicle her “Title IX Inquisition”: “In light of the many horror stories I’ve heard about despotic treatment in Title IX cases, I have to say I was treated extremely courteously.” She confesses she had complete confidence she would win and that “academic freedom would prevail.” And she indeed won. All charges were dropped. Freedom of speech prevailed. Unwanted Advances makes a familiar claim that campus misconduct hearings are “stacked against the accused”; that there “is no adequate method for sorting legitimate from specious claims”; and that “the safer path is to simply throw everyone accused of anything under a bus.” None of which were true in her case. Far from a malevolent netherworld of rigged results, Kipnis admits her investigation had been “thorough beyond belief” and that the “investigators had “bent over backward” to clear her. More startling, she confesses with self-sabotaging frankness that she wished the investigation had been “a little less thorough.” She even “half-hoped” she would “be found guilty.”

Running the Numbers The three rhetorical pillars of rape culture are denial, trivialization, and rationalization. Like DeVos, Kipnis denies that there is a pandemic of sexual violence on campuses, pointing instead to what she argues is a pandemic of false accusations, with “astounding levels of bias against accused men.” Kipnis accuses today’s feminists of surrendering agency by refusing to laugh off harassment as “comic fodder.” She says she wants to “complicate” the story that “it’s the perpetrators who are the problem.” She blames women for a host of dubious motives, “female passivity,” ambivalence, envy, and that hardy scapegoat, drinking. Rape is the only crime where drinking exonerates the perpetrator, but incriminates the victim. Kipnis questions the debated statistic that an average of one in five female students will be victims of sexual assault or rape during their college years. But in February 2017 the Bureau of Justice Statistics released a major study asserting yet again that an average of 21 percent of female undergraduates, 25 percent of female seniors, and 7 percent of men were sexually assaulted during their college years. “This is a major advance in the research about sexual assault on campus,” applauds researcher John Foubert. “We have many reasons to trust the results.” Certainly, the Bureau of Justice Statistics report reveals a serious crisis. If 21 percent of faculty cars were stolen, imagine the police presence, the media lights, the uproar. But these are our students’ bodies and minds that are being stolen and a growing chorus on the social media are now speaking out about the crisis. Vanessa Grigoriadis likewise engages the complexities of sexual statistics in Blurred Lines, a richly complicated and beautifully written chronicle that offers a far more nuanced and responsibly researched panorama of student life than Kipnis. A vast body of research confirms the calamities of post-traumatic stress. But Kipnis trivializes trauma: “You can catch trauma, which, like a virus never goes away,” she mocks. She describes Cho, a student in the Ludlow case, as seeing herself as “virtually a rag doll.” Kipnis calls Cho’s “histrionic state . . . contagious,” and derides Ludlow’s power to distress Cho as “magical effects.” Kipnis also belittles the realities of faculty predation. “It’s far more likely for a student to derail a professor’s career these days than the other way round,” she asserts, without offering evidence. But a new study by Nancy Chi Cantalupo and William C Kidder in Utah Law Review indicates the problem is worse than thought: “One in ten female graduate students at major research universities reports being sexually harassed by a faculty member.” And “most faculty harassers are accused of physical, not verbal, harassment, and more than half of cases — 53 percent — involve alleged serial harassers.” One anecdote lingered long after I closed the book. A friend told Kipnis her sister was raped while drunk on a fraternity couch. “I guess you couldn’t see that coming,” Kipnis joked. “We both laughed,” she writes. Kipnis blames the rape not on a man’s self-entitlement to a woman’s body, but on “female propensities for self-martyrdom.”

Broken Systems Like many on the Right, Kipnis indicts Title IX and the “Dear Colleague Letter” for violations of due process for which campus administrators were in fact responsible. What Kipnis misses is that it is precisely because campus hearings were so rife with abuses that the “Dear Colleague Letter” was vital, to guarantee due process for all, complainants and respondents alike. Kipnis arges, without offering any data, that accused students and faculty “all over the country” are being convicted, lives and careers “derailed.” Kipnis’s skewed focus on false accusations is dangerous because it gives a skewed sense of how many false accusations are actually made. Kipnis and others don’t offer statistics for the myth of rampant false accusations on campus. They can’t, because there aren’t any. The Bureau of Justice Statistics study confirmed the opposite: only 12.5 percent of rapes were even reported to either police or campus officials. Rape is the most underreported crime in the world. In the United States only 2 percent of rapists spend a day in jail. Campus hearings can’t “convict” anyone in the first place; they are not judicial affairs. Nor do they typically “ruin lives”: hearings are private under FERPA law, and findings typically don’t appear on transcripts, including at Kipnis’s own university. As Jessica Valenti reports for the Guardian: “On college campuses, only 10-25 percent of rapists are expelled, less than half are suspended, and many are given university mandated punishments like writing a research paper or an apology letter.” “Along with awkward sex, ambivalent sex,” Kipnis asserts, “even the wrong eye contact can get you brought up on complaints.” She claims she “heard about” a Title IX complaint about a professor dancing “too provocatively at an off-campus party.” My eyebrows rose. The Dear Colleague Letter states clearly to the contrary: “Harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” And harassment has to be “severe and pervasive.” Swaying hips and hickeys won’t cut it. Kipnis claims that on campuses: “regulation has replaced education.” Kipnis calls the Office of Civil Rights an “insatiable behemoth, bloated by its own federal power grab.” But the OCR is a casualty of austerity, under-resourced and under attack by the Right. Let me be clear. My experience at Wisconsin persuaded me that deans should not be in the business of adjudicating sexual assault cases. Campus hearings that are not in compliance with Title IX are broken; but then so is the criminal justice system today, with cases often taking three years, considerable sums of money, with remote chances of success. Nonetheless, administrators are obliged to protect the campus community. We need to devise a third way: an intermediary process with trained, independent investigators, not beholden to universities, who can conduct timely, expedited hearings compliant with Title IX, ensuring due process for all students, complainants, and respondents alike.