Remarks delivered at a Manhattan Institute luncheon, March 28, 2012 in New York City. Professor Johnson and attorney Harvey Silverglate, whose talk will be presented here tomorrow, spoke on “Kangaroo Courts: Yale, Duke and Student Rights.”

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Before the Patrick Witt case, I had some experience writing about how the New York Times handles cases of sexual assault allegations against high-profile college athletes–the Duke lacrosse case. After all that damage had been done, and after more than a hundred articles had been published in the New York Times, two Times editors, including Bill Keller, issued some half-hearted apologies for how the paper had mishandled the case, and “mishandled” is a generous word for what the Times did.

I had always worked under the assumption that when an institution

apologizes, it also takes steps to ensure that it doesn’t commit the

same kinds of mistakes again. But the Times obviously has a different

standard of apology than I do. And in the Patrick Witt case, the same

sorts of mistakes were made in coverage — a presumption of guilt when

the allegation is sexual assault, and a decision to ignore critical

procedural issue — because they don’t fit the preconceived storylines.

For those of you who aren’t familiar with the details, a one-minute summary. Witt was a quarterback, and a very good one, at Yale. He was also a finalist for the Rhodes Scholarship. It turned out that his interview for the Rhodes coincided with the day of the Harvard-Yale game. After some thought, he decided to withdraw his Rhodes candidacy and play in the game, which, alas, Yale lost. But it was a kind of feel-good story of a high-profile college athlete putting his team’s needs ahead of his own. And then for more than two months, the world forgot about Patrick Witt, as it should have, until the Times and a reporter, Richard Perez-Pena, swooped in with a nearly 2,000-word article splashed over the front page of the Times sports section detailing that the Rhodes fellowship had suspended Witt’s candidacy, because it had learned that he had faced an allegation of sexual assault.

The story left everything else to insinuation, but any reader would have come away with the following conclusions: One, that Yale and Witt had conspired together to present a false explanation of why he had chosen to withdraw. Secondly, that Witt was something of a habitual criminal. And thirdly, that he likely had done it. Nearly one-tenth of the article was devoted to two extraneous and minor alcohol-related arrests of Witt, the inclusion of which in the piece seemed to have the sole purpose of smearing his character. This story received a good deal of public criticism, including from me. And in response, the Times sort of doubled down on the story–exactly what they did in the Duke lacrosse case. They did not reassign Perez-Pena, as they had not reassigned Duff Wilson, their lead reporter in the lacrosse case. But they did authorize the public editor, Arthur Brisbane, to do his own reporting. This is a very odd journalistic strategy: a public editor doing reporting that the paper’s own reporter had chosen not to do.

The Times’ last line of defense was that this wasn’t an attempt to smear Witt’s character. It was merely an attempt to expose that he had misled his reasons for withdrawal. Even by those standards, the Times story almost certainly was inaccurate, and it definitely was unproven. The public editor conceded, in paragraph 24 of a 26-paragraph piece, that the original article never should have been published. The best reporting on the case was actually done not by the Times but by the Yale Daily News. And the best analysis of the case was done not by the Times, but by the sports website, Deadspin. And both showed that Witt likely withdrew for the exact reasons that he said, that he wanted to play in The Game, and he felt an obligation to his team.

In its attempt to smear Witt and his reputation, the Times actually missed two very significant stories from the Witt affair. The first was that there was one unequivocally true piece of information in the Perez-Pena article, and that is that the Rhodes Fellowship did suspend Witt’s candidacy on the basis of the sexual assault allegation. It was a suspension pending additional action by Yale. Yale had to reauthorize the candidacy, and for reasons I’ll talk about in a second, it’s likely Yale would have reauthorized the candidacy. And so the question is, was the Rhodes Fellowship justified in that action?

A reader of the Times would have assumed that Witt had faced a sexual assault allegation as we understand sexual assault allegations. In fact, Witt faced no such allegation. He faced an internal allegation at Yale. Any of you who have read Harvey Silverglate’s and Alan Charles Kors’s book, “The Shadow University,” or who spend less than two minutes perusing the F.I.R.E. website, will quickly conclude that college disciplinary processes are wildly tilted to minimize the due process rights of accused students. But Yale, in late 2010, decided that its sexual assault procedures were not sufficiently tilted in favor of the accuser. And so they set up a separate, informal complaint procedure for sexual assault. And it is this procedure to which Witt was subjected. Under this procedure, an accuser can file an allegation of sexual assault against a fellow classmate if he or she determines that that classmate has caused him or her to worry. Generally, worrying does not rise to the level of sexual assault. Once this procedure is initiated, and this is a direct quote from the Yale guidelines, “the goal is to achieve a resolution that is desired by the [accuser].” Generally, we do not have processes in which the goal is to benefit the accuser, and this procedure is designed to give the accuser choice of and control over the process.

In blunt language, this means that the accused student, Witt in this case, does not have the right within the Yale procedure to cross-examine his accuser. He does not even have the right to present evidence of his innocence. The accusation is accepted at face value, and the purpose of the process is to resolve it in a way that the accusing student feels comfortable. It is on the basis of this sort of complaint, filed under this procedure, that the Rhodes Fellowship decided that it needed to suspend Witt’s candidacy. That’s nothing short of extraordinary.

The second story that the Times missed, that the Witt case exposed, is that by Yale’s own figures, Yale is actually a hotbed of violent crime. Who knew? In the calendar year 2011, there were 13 allegations of sexual assault at Yale, according to Yale’s figures. All 13 were filed under this informal complaint process, which means that the accuser never went to police, never received any sort of medical exam, and the accused student never had a right to cross-examine or to present evidence of innocence. To give a sense of how out of whack these figures are, if you accept Yale’s standards, on a per capita basis there was more likely to be a sexual assault on the Yale campus, by a factor of between ten and twelve, than in the city of New Haven. And New Haven isn’t just any city. According to the FBI, it’s the fourth most dangerous city in the country for populations over 100,000. So the Times had one of two stories. Either one of our nation’s leading institutions is so dangerous that it’s infinitely more crime-ridden than one of the most dangerous cities in the country, or in fact, one of our leading universities is dumbing down sexual assault. It is, in fact, the latter. In a footnote in a lengthy report on this new process, issued by the Yale Deputy Provost, Yale conceded that the university uses, and this is a direct quote, “a more expansive definition of sexual assault than is commonly understood.” Indeed, claiming that a “worry” constitutes sexual assault is expansive indeed. And so what a university has done is to take a commonly understood phrase, sexual assault under the law–a phrase that’s also basically commonly understood in the general public–and defined it in a way that no one would understand or recognize. That is the real story of the Patrick Witt case.

A final point on Witt. Within this Yale informal complaint process, there is one possible procedural protection that is granted to the accused student, and that is that the process is supposed to be wholly confidential. So the accused student cannot present evidence of his innocence. He can’t cross-examine the accuser. He is presumed guilty. But at least he has the benefit of knowing that it won’t become public, or at least it won’t become public immediately. In Yale’s case, and in the case of Witt, even that one incredibly minor procedural protection was violated. And not only was it violated, it was violated with a malevolent intent. Whoever leaked this information to the Rhodes Trust, and it’s a very discrete number of people who could have leaked this (either someone associated with the accuser, or I would say more likely, someone within the Yale administration), the goal was to sink Witt’s Rhodes candidacy. And that leakage in turn led to the coverage in the Times and the permanent smearing of Witt’s reputation. This morning, before I came over, I did a Google search, Patrick Witt, sexual assault, it yielded 33,600 hits. This is what Witt is now remembered for. There is absolutely no evidence that Yale is investigating this breach of its procedures, I emailed the Yale University spokesperson to ask if an investigation was occurring. He declined to respond. And there is no indication that at any point in the future Yale is going to investigate this breach of procedures. Indeed, it seems as if the university is not terribly concerned with assault if the issue is assault of privacy against one of its students. And that is the story of Patrick Witt.