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DeVos restores fairness to campus sexual misconduct cases
Last summer, Yale University settled a lawsuit by former basketball captain Jack Montague, alleging that the university unfairly expelled him for sexual misconduct. Montague, the son of an electrical contractor and bookkeeper from Tennessee, was kicked out of Yale midway through his senior year after a female student told a Title IX investigator that, during the previous school year, she hadn’t fully consented to a fourth sexual encounter with the basketball star. Montague’s suit against Yale argued (among other things) that the college’s investigation was biased and conducted in bad faith.
In 2017, Amherst College settled a lawsuit by an Asian-American former student known only as “John Doe,” who also claimed he was unjustly expelled for sexual misconduct. A female student who willingly performed oral sex on Doe claimed, almost two years later, that she had withdrawn her consent midway through the act. Doe said he had blacked out during their rendezvous and argued that text messages from the female student to a third party about the encounter demonstrated that she was a willing participant.
Like Montague, Doe sued his former college arguing that the school’s investigatory tribunal was more interested in appearing tough on sexual misconduct than it was in ascertaining the truth.
Montague and Doe are not alone. According to a recent review by Samantha Harris, vice president at the Foundation for Individual Rights, and K.C. Johnson, a professor of American History at Brooklyn College, more than 340 students penalized for sexual misconduct by Orwellian campus tribunals have brought federal lawsuits against their schools. (Many more have sued in state court). Federal courts have issued more than 90 decisions favorable to accused students, and colleges have settled more than 70 additional cases prior to any decision.
The Harris and Johnson survey suggests that attempts to address sexual assault on campus, although well intentioned, have done so at the expense of fairness, and, in many cases, the truth. That may change when Secretary of Education Betsy DeVos issues final federal regulations governing the way schools investigate sexual harassment and assault.
Although for many years colleges showed little interest in combating campus sexual assault or providing resources for victims, over the past decade, the pendulum has swung in the opposite direction.
Today, many campuses define sexual misconduct broadly to include behavior that does not violate the law. Some define any sex under the influence of alcohol as non-consensual. Others require verbal consent to be obtained at each and every stage of coupling.
More disturbingly, many colleges employ investigatory procedures that are less fair to the accused than even the dreaded Star Chamber — procedures that eliminate the presumption of innocence and deny accused students any meaningful opportunity to tell their side of the story or question witnesses.
The new regulations that DeVos is expected to issue soon attempt to restore balance by formalizing the obligations of schools to address claims of sexual misconduct, but also requiring that schools investigate such claims fairly.
The rules are expected to allow the accused to submit “exculpatory” evidence — evidence that supports his or her version of events, such as witness testimony, text messages, or proof of continued sexual relations — and allow the accused to cross-examine adverse witnesses. To protect accusers, the regulations are also expected to contain a “rape shield” provision that prohibits inappropriate questioning about an accuser’s sexual past.
DeVos has made every effort to balance the rights of the accuser and the rights of the accused, while providing colleges and universities the tools to assess claims accurately and punish misconduct.
Nevertheless, activists are calling the new regulations “intimidating and stressful, even “trauma-inducing,” for survivors. Others are calling for “massive national student resistance,” and demanding that colleges and universities ignore them. Four Democratic congresswomen recently introduced legislation to block the regulations, and former vice president Joe Biden has promised that, if elected, he will repeal the DeVos regulations and reinstate older guidelines that encouraged schools to lower the burden of proof in cases of sexual misconduct.
Perhaps the federal Department of Education shouldn’t micromanage college disciplinary procedures at all. But policy makers like DeVos are right to remind schools that, although federal law prohibits schools from responding to claims of sexual misconduct in a discriminatory way, schools should take care to handle all claims fairly and with due process.
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How to Cope With Your Prof’s Left-wing Bias
By Hans Bader
To get the best possible grade, students may need to pander to their professors’ left-wing ideology.
Professors are much more likely to be progressives than they are to be moderate or conservative. Law professors are no exception. Progressive professors view progressive views as a sign of intelligence, and conservatism as a sign of stupidity. For example, Prof. Robert Brandon, head of Duke University’s philosophy department, argued that conservatives are rare in academia because they are stupid.
So to get a good grade, moderate or conservative law students should pretend to be progressives when taking their final exam. That will make them seem more intelligent to their left-wing professors. They should echo their professor’s left-wing ideology in answering exam questions — such as questions about what a vague provision of the Constitution means, or about who should win a lawsuit where both sides have a plausible legal argument.
Parroting my professors’ left-wing ideology worked for me at Harvard Law School. For example, I got a good grade in my tort law class, because I parroted the professor’s male-bashing and left-wing extremism. I got a high grade even though I did not understand tort law as well as most of my classmates. When I failed to pander to my left-wing professors’ ideology, I got lower grades. I received only a B- in property law, which I understood better than many classmates. Why? Perhaps because I did not echo the anti-property-rights mindset of the left-wing professor.
Moderate and conservative law professors themselves have advised students to parrot their progressive professors’ views to get a good grade on their final exam. Law professor Robert Anderson advises,
Law students: Remember to echo your professor’s ideology on your final exams! If you haven’t noticed this on Twitter, many profs are incapable of separating “is” from “ought,” acknowledging trade-offs, or recognizing the validity of counterarguments.
Law professor Orin Kerr agrees. He is America’s leading expert on computer crimes and the Fourth Amendment. He notes that while “there are exceptions,” what Anderson recommends “is often good advice. I took several exams in law school while rolling my eyes about the absurdity of the nonsense I was writing. But it worked.”
Kerr is conservative compared to the typical law professor, although he is not a right-winger. He was a law clerk to the moderate Republican Supreme Court justice Anthony Kennedy, the swing vote on the Supreme Court, and before that, he was a law clerk to moderate Republican judge Leonard Garth. Kerr belongs to the conservative-leaning Federalist Society. But he publicly endorsed Hillary Clinton in 2016 out of distaste for Donald Trump.
There are a few conservative professors. But not many. Professors are becoming more and more left-wing over time. As economic historian Phillip Magness notes,
survey data point to a sharp and overwhelming leftward shift in faculty political self-identification starting around the year 2000 and persisting to the present day. While self-identified liberals comprised a relatively stable plurality of about 40 percent [in the 1970’s], that number grew to a clear 60 percent majority in the last two decades. Conservative faculty, by contrast, dwindled away from one-third of the faculty as recently as 1984 to just 12 percent today. Furthermore…the recent shift does not come from gradual ideological drift toward mainstream left-of-center politics. Its primary driver is an explosion in the number of faculty who identify on the far left — a category that includes Marxists, socialists, and adherents of derivative ideological positions such as critical theory.
Even moderate Republicans are often deemed too conservative in academia. Moderate Republicans with Ivy League degrees and genius level IQs sometimes can’t find a job as a professor at a good university. One of my former bosses had a degree from the highest-ranked law school (Yale) and had published scholarly articles in multiple law reviews. He had also practiced law at a big-name Manhattan law firm. Yet law schools turned down his job applications and hired progressive applicants with inferior credentials instead. His intelligence was such that he later successfully argued a landmark Supreme Court case.
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Pete Buttigieg's Comments on Slavery Show the Failure of Our Educational System
Video surfaced on Saturday of Democratic presidential candidate Pete Buttigieg saying in 2014: “It’s an embarrassing thing to admit, the people who wrote the Constitution did not understand that slavery was a bad thing.” In saying this, Buttigieg demonstrated both his abject ignorance of the history of America’s founding and the utter failure of the American educational system to teach that history. No wonder this place is crawling with young socialists and America-haters.
Buttigieg, the Mayor of South Bend, Indiana, is 37 years old; he reportedly attended Catholic schools, not public schools, in his youth. At this point, however, that is a distinction with barely a difference: both Catholic and public schools generally teach the spirit of the age, and that spirit dictates that the Founding Fathers, when not ignored altogether, should be presented as white male slave owners without any redeeming qualities.
If Buttigieg had received anything resembling a decent education, he would have learned about a fellow named Thomas Jefferson, the principal author of the Declaration of Independence and third president of the United States. Jefferson was a slaveholder, and that is likely to be all that young Mayor Pete was taught about him. But reality is seldom simple and cut-and-dried. As president in 1807, Jefferson promoted the Act Prohibiting the Importation of Slaves, which outlawed the importation of slaves after January 1, 1808. Jefferson hoped that it would lead to the outlawing of slavery altogether, as he stated in his annual message to Congress on December 2, 1806: “I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country, have long been eager to proscribe.”
Hmm. That doesn’t sound as if Jefferson “did not understand that slavery was a bad thing.” But taking a strict constructionist view of Buttigieg’s statement, Jefferson was a key Founding Father, but he was not a primary architect of the Constitution. The “Father of the Constitution” was another dead white male Mayor Pete may or may not have heard of: James Madison, who earned that nickname by being the principal architect of both the Constitution as it was originally written and the Bill of Rights (that’s the first ten amendments to the Constitution, Pete). Madison (yes, another slave owner) supported the prohibition on the importation of slaves, but was impatient with the delay of getting it going.
“It were doubtless to be wished,” Madison wrote in 1788, “that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.” He explained that “it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!”
Once again, this sounds as if James Madison understood perfectly well that slavery was a bad thing. To be sure, there were some among the Founding Fathers who didn’t understand that, and anti-slavery forces at the Constitutional Convention had to make the hard choice between accepting slavery, hoping to end it in the near future, and dividing the United Colonies into two or more states, which would weaken them all. They chose the former, but that doesn’t mean that Jefferson, Madison, and many others, notably the irascible and fantastic John Adams, didn’t understand the evil of slavery.
If by some bizarre turn of events Pete Buttigieg becomes president of the United States, he would likely not be the first product of our shoddy, heavily politicized, and frankly anti-American educational system to enter the Oval Office without any understanding of or appreciation for the greatness of the office he now occupied, and its illustrious history. The first was Barack Hussein Obama. How many more such presidents can the free republic that Jefferson, Madison, and the rest bequeathed to us afford to have?
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