Thursday, August 15, 2019

Chronicle of Higher Education, The Revolt of the Feminist Law Profs:

In the fall of 2011, the Department of Education’s Office for Civil Rights issued informal, non-binding guidance on how colleges should treat claims of sexual assault and harassment in a document now referred to as the Dear Colleague letter. It was accompanied by public claims of an ongoing crisis of sexual violence on universities made by President Barack Obama and Vice President Joe Biden. In 2014, [Jeannie Suk] Gersen and three of her colleagues — Elizabeth Bartholet, Janet Halley, and Nancy Gertner — led a contingent of their peers in calling out the system of investigation and adjudication that emerged during the Obama years as “so unfair as to be truly shocking.” The four were joined by 24 of their Harvard Law colleagues in an open letter published in The Boston Globe decrying Obama’s Title IX recommendations as “overwhelmingly stacked against the accused.”

In a statement called “Fairness for All Students Under Title IX,” jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant. Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.” “Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing. ...

Writing in the California Law Review, Gersen and her husband Jacob argued that the creation of a “sex bureaucracy,” as the title of that article christened the system of administrative oversight of student sex lives, entailed “the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others.” The Gersens go on to note that “watered-down notions of nonconsent” embedded into regulation allowed “ambivalent, undesirable, unpleasant, unsober, or regretted sexual encounters to meet the standard.” The system thus “will investigate and discipline sexual conduct that women and men experience as consensual (if nonideal) sex.” The conduct deemed illegal, the Gersens wrote, “plausibly covers almost all sex students are having today.”

These expansive definitions of wrongdoing were paired with an adjudication system lacking nearly every aspect of fair process. “In recent years, it has become commonplace to deny accused students access to the complaint, the evidence, the identities of the witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses,” Gersen noted in a recent piece in The New Yorkerlooking back at the changes wrought by the Dear Colleague letter.

The sex bureaucracy, in other words, pivoted from punishing sexual violence to imposing a normative vision of ideal sex, to which students are held administratively accountable. Georgia Southern University, for instance, explains that “Consent is a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.” The California Law Review article culminates in a discussion of a case in which a gay male student was found responsible for sexual misconduct for waking his partner with a kiss (the sleeping cannot consent) and for looking at his partner’s genitals without consent while showering (consensually) with him.

Such cases, Gersen told me, are not outliers: “They really became the modal way in which these things are enforced.” These apparent reductiones ad absurdum are the inexorable result of encouraging people to regard their intimate relations through the lens of the sex bureaucracy. “We are giving young people the idea that the unhappiness that they have about their relationships is a matter to be taken up with the authorities,” Gersen said. “In this very large continuum of unpleasant interactions that can happen, at some point you draw a line and say, ‘These are consensual, these are not consensual.’ Lots of people disagree about where to draw the line. But most people would want to draw a line so there is such a thing as consensual sex.” She went on, “Everyone who works in the Title IX world, if you talk to them about the nature of these factual claims, for the most part we are not talking about accusations of forcible or coercive conduct.”

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