"Trading the Megaphone for the Gavel"
February 20, 2015 6:37 AM   Subscribe

How will strengthened Title IX enforcement at colleges handle the "hard cases"? Janet Halley, Professor at the Harvard School of law, relates some interesting anecdotes as potentially recurring situations to which there is no straightforward solution. There is the "young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that."
posted by anewnadir (153 comments total) 18 users marked this as a favorite
 
That story she ends on is so over the top batshit that I have a hard time believing it, not least because I can't find anything on Google except right-wing blogs referencing this article. This guy never went to the media or anything about it? My skepticism is going off hard on this.
posted by Pope Guilty at 6:55 AM on February 20, 2015 [34 favorites]


It's definitely reads like a, "There has to be more to this story..." type thing at least.
posted by Drinky Die at 6:57 AM on February 20, 2015


Yeah. If it happened, it happened, and needs to be dealt with, but the story as presented is too over the top and too much like an MRA's persecution fantasies to accept without more information IMO.
posted by Pope Guilty at 6:58 AM on February 20, 2015 [9 favorites]


While some cases discussed in the article are indeed complex and ambiguous, I see nothing "hard" about that particular case at all. Merely an egregious example of Kafka-esque bureaucratic madness.

(Although I don't think the author really intended that to be an example of a "hard" case either.)
posted by Naberius at 7:00 AM on February 20, 2015 [1 favorite]


Insanity. Bad experiences are no one else's fault but those involved.

You actually have a hard time believing this? I confess I do not. It's trigger warnings taken to an insane, but sadly believable, extreme.

Maybe it isn't true. Doesn't mean it's not believable.
posted by umberto at 7:01 AM on February 20, 2015 [4 favorites]


For someone who made such a big deal about how unreliable hearsay is at the beginning of the article, Halley seems dead-set on us believing hearsay and hypotheticals for the rest of it.
posted by zombieflanders at 7:03 AM on February 20, 2015 [17 favorites]


any article about rape that starts with such weird hand wringing about feminists is immediately suspect. this whole thing is filled with snide victim blaming and fodder for mra persecution complexes.
posted by nadawi at 7:05 AM on February 20, 2015 [27 favorites]


Maybe it's a test.
posted by Seamus at 7:05 AM on February 20, 2015 [1 favorite]


(Although I don't think the author really intended that to be an example of a "hard" case either.)

Well, right before that she was talking about a situation where a woman who was abused as a child was feeling traumatized by some interactions at work that did not rise to the level of sexual harassment. She was honestly traumatized. That's what makes it hard, she really is a victim, just not a victim of her coworkers. It's hard in a, "How DO we handle this?" sort of way and not a "Should we just fire everybody who makes eye contact with her or not?" (Obviously no) kind of way.
posted by Drinky Die at 7:06 AM on February 20, 2015 [5 favorites]


Bad experiences are no one else's fault but those involved. 

surely i'm reading this wrong. are you saying people who are raped are partially responsible?
posted by nadawi at 7:08 AM on February 20, 2015 [2 favorites]


I Do Not Understand Rape Culture
posted by christonabike at 7:09 AM on February 20, 2015


zombieflanders: For someone who made such a big deal about how unreliable hearsay is at the beginning of the article...

In criminal justice and academic discipline situations. I don't think this line of critique is fair; and it seems weird how quickly this thread has jumped to "she's lying".

Janet Halley surely has some views that I imagine a lot of MetaFilter would disagree with, but she doesn't sound like a MRA type spinning up fantasies to make some anti-feminist statement. This sounds like someone who deals with this stuff professionally and philosophically, and is talking about the nuts and bolts issues that arise when you devise a practical regime. I never see her point to problems and try to undermine the whole enterprise of Title IX. She specifically calls these "hard cases", not representative cases.
posted by spaltavian at 7:09 AM on February 20, 2015 [25 favorites]


Rulemaking always requires the balancing of various interests. This is typically a fraught, ongoing, difficult task. It's utterly unsurprising that rules concerning sex crimes would be just as complicated as those concerning any other serious issue.

Not all of Prof. Halley's arguments are equally persuasive in their particulars, but her broader point ought to be well-understood: when it comes to this aspect of Title IX enforcement, there is no simple solution, not when it comes to resolving cases generally, not when it comes to reducing sex crimes generally, and not when it comes to assigning the appropriate level of responsibility to the academic institutions.

The Oregon story does indeed sound bananas. Whether her account is more or less true is not for me to know, but either way, I would imagine that the male student in the story would *not* go to the media if his name has not otherwise been leaked.

...

For someone who made such a big deal about how unreliable hearsay is at the beginning of the article, Halley seems dead-set on us believing hearsay and hypotheticals for the rest of it.

What hearsay are you talking about in her article? Hearsay as admissible evidence at a hearing (or trial, etc.) has a pretty specific set of meanings, along with two accompanying labyrinths of exceptions.

Either way, she's writing an article, not holding a hearing (or trial, etc.). Hypotheticals, and even many kinds of hearsay, are perfectly acceptable in that context. They might still be bad arguments, but there's no categorical problem with those kinds of things, nor would she be a hypocrite for employing them.
posted by Sticherbeast at 7:10 AM on February 20, 2015 [10 favorites]


i'm not sure how this can be described as anything besides anti-feminist...
Janet Halley, a professor of law at Harvard University, perceives a "fierce turn in American feminism towards the state" and a powerful tendency towards "criminalising and illegalising as many of the bad things that men did to women as feminism could articulate". In the process, she believes that feminism "has lost a certain power of critical thinking", the clarity of vision that would allow it to focus on "what law really does in a complex society". Feminism, she argues, should "take a break" - and a good, long, thoughtful look at things as they are.
posted by nadawi at 7:16 AM on February 20, 2015 [29 favorites]


Did you read the rest of the piece?

Perhaps she will employ snide victim blaming in her course load this spring:

Feminist Legal Theory, Spring 2015
Reproductive Rights and Justice, Spring 2015

I wonder how much fodder for MRA persecution classes she provided in her "Gender and Sexuality in Transnational Law" class she just wrapped up.

I just don't think she's teaching those classes as a long anti-feminist troll.
posted by spaltavian at 7:18 AM on February 20, 2015 [19 favorites]


maybe so. i'm not taking those courses, i'm judging the things in front of us where she seems contemptuous of feminism and the victims of rape.
posted by nadawi at 7:22 AM on February 20, 2015 [8 favorites]


She's not anti-feminist. She's a feminist making an argument about where she believes feminism is heading.

I found the post interesting and thought-provoking; thanks for sharing it here.
posted by (Arsenio) Hall and (Warren) Oates at 7:23 AM on February 20, 2015 [26 favorites]


One justification for biasing the system to favor women and disfavor men is a perception that, in the campus drinking culture, men have more power than women, along with a social-change intuition that a rule shifting bargaining power over sex decisions from the former to the latter, precisely through the threat of predetermined victimhood and guilt, will be an effective way to change that culture. This logic makes sense: get them by the balls and their hearts and minds will follow. But it is not cost free. It entails a decision to impose a serious moral stigma and life-altering penalties on men who may well be innocent. Doing this will, in turn, delegitimize the system.

Not only that, it's going to result in a tidal wave of lawsuits against colleges and universities, which those schools will lose.
posted by kgasmart at 7:23 AM on February 20, 2015 [9 favorites]


Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to take regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews and justify large expansions of the powers and size of the administration generally.

Ugh, sounds about right to me. Goes along with zero-tolerance policies in elementary schools where 3-6 year olds are being labeled sexual harassers.
posted by shivohum at 7:23 AM on February 20, 2015 [10 favorites]


She just sounds like a defense attorney to me.
posted by srboisvert at 7:27 AM on February 20, 2015 [5 favorites]


maybe so. i'm not taking those courses, i'm judging the things in front of us where she seems contemptuous of feminism and the victims of rape.

Well, I don't think she she seems contemptuous of victims of rape. As for feminism; I have heard some very superficially similar things from anti-feminists, but they didn't come from any lived experience (professional or personal) and they were used to undermine feminism in general. Halley clearly didn't do that in either piece. I think the courses indicate that maybe there's a possibility other than "anti-feminist" for why her views may seem unorthodox. She's an academic who has written on feminism a lot and has developed her own views and nuances. An MRA and a feminist may occasionally stumble on the same critique of feminism. The MRA is concern-trolling, sure, but unless Halley is running the world's longest con, she not, and it's not fair to reduce her to that level.
posted by spaltavian at 7:29 AM on February 20, 2015 [17 favorites]


As for "hard cases": the saying "hard cases make bad law" doesn't really apply here. The saying is specifically about appellate decisions which will resolve an instant case, while also creating binding legal precedent for future decisions. Don't write an opinion which will achieve a good result for the instant case, but at the expense of future cases. It's about balancing interests, and the idea that courts of appeal are not here to make individual parties happy, but rather to rule wisely and fairly in a big picture sense.

It doesn't really work as a response to Prof. Halley's arguments, no matter their validity. Drafting and altering rules is a different process than writing an appellate decision. It entails a different sort of aforethought. You're not creating binding precedent around an instant case, but rather you're creating general rules specifically enumerated to produce future outcomes. It is always necessary when drafting and altering rules to consider all your interests and possible outcomes. This always involves considering hypotheticals.

Prof. Halley's arguments may or may not all be persuasive, but that's a separate set of issues.
posted by Sticherbeast at 7:32 AM on February 20, 2015 [2 favorites]


Bad experiences are no one else's fault but those involved.

surely i'm reading this wrong. are you saying people who are raped are partially responsible?


I'm sure Nadawi can speak for themselves, but my own thoughts are that rape victims are certainly not responsible for what happened to them. However, while I wouldn't word it as a "responsibility" of victims, I think it is simple reality that when something bad happens to someone - be it rape, terrorist bombing, carjacking, natural disaster or whatever - there are limits to what society can and should be expected to do to ameliorate the trauma and harm that has been inflicted.

Surely we can offer counseling and support. Surely we can do what we can to restore loss and prevent further harm. But the responsibility to the victim of a rape or any other traumatic experience because of their experience simply cannot be infinite. A line must be drawn somewhere, and beyond that line the affected person simply must live with the truth that something bad happened to them and they have been affected, perhaps permanently, by those events.

As much as we might like to, we can't simply undo what has been done, and it's not fair to inflict more harm on innocent people in a futile attempt to do so. It's absurd to do what was (allegedly) done to this Oregon student simply because he reminded someone else of a third party who did something awful. We can argue for days about where the line of appropriate response should be drawn, but I can't imagine a sane world where that isn't miles beyond it.
posted by Naberius at 7:44 AM on February 20, 2015 [16 favorites]


There is the "young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

This has to be Reed. (Although it's a college, not a university.) Sigh.
posted by snuffleupagus at 7:47 AM on February 20, 2015 [2 favorites]


Similar dynamics affect gay men, lesbians, and trans individuals: being attracted to them can so shock some people that the easiest way back to equanimity is to attack them. Remember Boys Don’t Cry.

...did she just try to justify the trans panic defense?
posted by NoxAeternum at 7:49 AM on February 20, 2015 [8 favorites]


maybe we can figure out if the oregon thing is even true before we continue to use it as a justification to blame victims for causing harm to innocents.
posted by nadawi at 7:49 AM on February 20, 2015 [10 favorites]


NoxAeternum: "...did she just try to justify the trans panic defense?"

No, the opposite. Try to keep up.
posted by signal at 7:53 AM on February 20, 2015 [5 favorites]


...did she just try to justify the trans panic defense?

Sounds like she explained it. Where do you get "justify"?
posted by spaltavian at 7:54 AM on February 20, 2015 [6 favorites]


...did she just try to justify the trans panic defense?

It's not the greatest writing, but in context, it's pretty clear that she thinks it's shitty. This is the immediately preceding sentence:

the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.

My read is that she thinks trans panic makes sense given the generally shitty way society treats gay men, lesbians, and trans individuals, but doesn't think it's praiseworthy or good.
posted by joyceanmachine at 7:54 AM on February 20, 2015 [5 favorites]


maybe we can figure out if the oregon thing is even true before we continue to use it as a justification to blame victims for causing harm to innocents.

I'm not sure we are going to be able to get more detail on it, just gonna have to surround any discussion with this with the word "allegedly" as much as is reasonable.

...did she just try to justify the trans panic defense?

She made a somewhat awkward comparison to what black men face in rape cases and the criminal justice system. I'm still not quite sure what point she was trying to make there. The types of challenges the two groups face seem to be very different to me. (Though equally serious.)
posted by Drinky Die at 7:55 AM on February 20, 2015 [1 favorite]


the affected person simply must live with the truth that something bad happened to them 

also thanks for the lecture that victims have to accept that bad things happen, i guess i missed that in my life of being a survivor of multiple rapes starting when i was six years old where the rapists never feared justice for a single second.

have fun, y'all, i'm out.
posted by nadawi at 7:55 AM on February 20, 2015 [9 favorites]


To be honest, something bad happened at "a small liberal college in Oregon" doesn't even reach Tom Friedman's made up taxi driver standards of evidence. Name names.
posted by MartinWisse at 7:56 AM on February 20, 2015 [24 favorites]


surely i'm reading this wrong. are you saying people who are raped are partially responsible?

I read it as simply echoing approximately the point of the article (people not involved should not be held responsible) as the contrapositive (only people involved should be held responsible). Not an endorsement either way though.
posted by Nomiconic at 7:58 AM on February 20, 2015 [4 favorites]


Hearsay as admissible evidence at a hearing (or trial, etc.) has a pretty specific set of meanings

Let's try and keep the beep boop I cannot understand the meaning of quite common words outside of a courtroom robot dance to a minimum, shall we?

This is hearsay because there's nothing concrete here to show it really happened, other than in the imagination of the writer.
posted by MartinWisse at 7:58 AM on February 20, 2015 [4 favorites]


Describing a thing is not justifying that thing. "Is" does not mean "ought".

You’d think this would be obvious, no? Apparently not, even on metafilter.
posted by pharm at 7:59 AM on February 20, 2015 [12 favorites]


> This has to be Reed. (Although it's a college, not a university.) Sigh.

That was my thought, too.

It's interesting how many threads we've had on this site alone where many thousands of words have been used in service of picking apart every rape story as reported in rape-on-campus articles, but here, so far? We have "Maybe it isn't true. Doesn't mean it's not believable."
posted by rtha at 8:00 AM on February 20, 2015 [24 favorites]


Oh, derp. I misattributed when I said Nadawi could speak for themselves. It was Umberto who made the original statement and Nadawi who responded. Apologies if I confused anyone.

This also explains my confusion about how that particular bit of the thread proceeded subsequently.
posted by Naberius at 8:01 AM on February 20, 2015


Maybe the pull-quote that comprises the OP could add this part from the article: "I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon..."
posted by (Arsenio) Hall and (Warren) Oates at 8:02 AM on February 20, 2015 [4 favorites]


She made a somewhat awkward comparison to what black men face in rape cases and the criminal justice system. I'm still not quite sure what point she was trying to make there. The types of challenges the two groups face seem to be very different to me. (Though equally serious.)

I think that she was trying to tie using the Title IX compliance office as a means of handling sexual assault and rape on campus to the old practice of accusing black men of rape for just touching a white woman.

Which comes across as more than a little oogy.
posted by NoxAeternum at 8:05 AM on February 20, 2015 [3 favorites]


MartinWisse: Hearsay as admissible evidence at a hearing (or trial, etc.) has a pretty specific set of meanings

Let's try and keep the beep boop I cannot understand the meaning of quite common words outside of a courtroom robot dance to a minimum, shall we?


Read the thread. Halley a is law professor who used the word in a specifically legal context. Someone tried to claim she was being contradictory because she was using "hearsay" while decrying it, and the post you responded to was specifically pointing out that register shift.
posted by spaltavian at 8:09 AM on February 20, 2015 [10 favorites]


I think that she was trying to tie using the Title IX compliance office as a means of handling sexual assault and rape on campus to the old practice of accusing black men of rape for just touching a white woman.


No, she was arguing that there might be racial disparities in Title IX cases because of those the same stereotypes and assumptions:

The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.

And she has evidence that, yeah, that's happening:

Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents, but the institution cannot “know” this because it has not been thought important enough to monitor for racial bias.

Which I think she's absolutely right to bring up, despite anything else in her article that's a little suspect.
posted by damayanti at 8:12 AM on February 20, 2015 [9 favorites]


To be honest, something bad happened at "a small liberal college in Oregon" doesn't even reach Tom Friedman's made up taxi driver standards of evidence. Name names.

I'm not aware of that many 'small liberal arts universities' in Oregon. Reed, Lewis & Clark, and Southern Oregon/Ashland.

Perhaps it's not Reed at all, but:

I found this 2013 story, about hostile learning environment under Title IX at Reed (which does have a history of being in the news for poor handling of sexual misconduct by students and faculty, much to its administrators' chagrin).

It involves a student tradition that for some participants includes public nudity, and its impact on students with trauma from a past sexual assault. It's not hard to imagine Reed's typically ham-fisted, image-conscious and unimaginative admins being once-bitten twice shy when it comes to handling the sensitivities of a student with a history of assault, and applying the same sanctions during an investigation of some moronic 18 year old waving his wang in the breeze in a crowd in front of the lecture hall in unfortunate proximity to a prior assault victim whose abuser he resembles, as would be applied to a student being investigated for a direct assault against another student; reasoning by default that the potential for harm to the student traumatized by prior victimization requires the same protections as a student victimized while attending the school.
posted by snuffleupagus at 8:13 AM on February 20, 2015 [3 favorites]


Halley explicitly states that she had personal involvement with the college case. There is no "allegedly" here: some poor sap was punished for looking like someone else. That is, in a word, fucking insane, and it leads down a path we really don't want to travel.
posted by five fresh fish at 8:13 AM on February 20, 2015 [8 favorites]


So to your mind the fact that she says she was involved in this case means both that it happened and that it happened the way she says it did? That's a low standard of evidence for such a bizarre accusation.
posted by Pope Guilty at 8:19 AM on February 20, 2015 [9 favorites]


There is no "allegedly" here: some poor sap was punished for looking like someone else.

I welcome your viewpoint in every future thread about rape and sexual harassment when a woman's story about being raped or harassed is questioned or dismissed as being unreliable because there's no corroborating testimony.

FWIW, I am not saying I categorically disbelieve the story the author relates. I am pretty grossed out by the "she said it happened, so shut up" attitude by some here. Where's the critical approach so often advocated in other threads?
posted by rtha at 8:24 AM on February 20, 2015 [22 favorites]


NoxAeternum: I think that she was trying to tie using the Title IX compliance office as a means of handling sexual assault and rape on campus to the old practice of accusing black men of rape for just touching a white woman.

That's not the case. She was clearly stating that since Title IX has solely a gender/sexual harassment mandate, it would be blind to a racial To Kill A Mockingbird Situation or a gay/trans panic situation:
Title IX, after all, is dedicated solely to sex discrimination; the Harvard Title IX Office, dedicated exclusively to enforcing the University’s new rules on sexual and gender-based harassment, has no mandate to ensure racial equality. Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents, but the institution cannot “know” this because it has not been thought important enough to monitor for racial bias.
There's just no way to arrive at your suggested meaning.
posted by spaltavian at 8:25 AM on February 20, 2015 [2 favorites]


Where's the critical approach so often advocated in other threads?

In the first three comments of the thread and the majority of the rest.
posted by Drinky Die at 8:26 AM on February 20, 2015 [13 favorites]


She might be unable to name names, for legal and/or ethical reasons. Even if she is able to name names, she might also have her own very good reasons for not naming names, e.g. if the students' names are already not out there, then why put them out there.

The real lesson here is that you shouldn't reference a nutty-sounding case unless others can examine it.

(FWIW, I have a few times referenced my own nutty cases on this board, albeit with hidden and disguised information. However, since those nutty cases mostly confirmed narratives which MeFi (including myself) already basically follow, nobody ever demanded proof.)

...

Let's try and keep the beep boop I cannot understand the meaning of quite common words outside of a courtroom robot dance to a minimum, shall we?


No. Words have meanings. Terms of art have their own meanings as well. She was specifically referencing "hearsay" as a legal concept. If people do not wish to discuss the legal concept of hearsay, then they have every right to not discuss the legal concept of hearsay. However, if people are going to discuss hearsay as she had brought it up, then people should expect to get called out for doing so incorrectly.

This is hearsay because there's nothing concrete here to show it really happened, other than in the imagination of the writer.

That is not what hearsay is, not according to any known definition, legal or otherwise. Generally, hearsay is an out of court statement admitted for the truth; colloquially, it could be anything you cannot personally attest to.

For this article, hearsay would be something like, "a friend of mine told me about this crazy case". Note that actually a good deal of reporting, let alone opinion pieces, actually do incorporate the "statements" of others all the time, sometimes even anonymous statements. Do we all suddenly have a categorical problem with this?

A good deal of hearsay is actually rather reliable, just as a good deal of non-hearsay is utter nonsense. Many forms of hearsay are actually admissible, such as that which falls under the business record exception, just as many forms of non-hearsay may be inadmissible or even downright illegal, such as perjury. That's why there are two categories of exceptions: those exceptions which say that the statement in question is not actually hearsay, and those exceptions which say that the statement may be hearsay, but it is actually an admissible form of hearsay.
posted by Sticherbeast at 8:27 AM on February 20, 2015 [13 favorites]


So to your mind the fact that she says she was involved in this case means both that it happened and that it happened the way she says it did? That's a low standard of evidence for such a bizarre accusation.

What do you imagine her reasons for lying would be?
posted by spaltavian at 8:27 AM on February 20, 2015 [1 favorite]


NoxAeturnum, she was saying that because the Title IX office is only concerned with sex and gender issues it risks being completely blind to racial issues in it’s handling of complaints.

Why is this so hard to grasp?
posted by pharm at 8:28 AM on February 20, 2015 [1 favorite]


That article was kind of a sprawling mess. I think there's generally a reasonable point to be made that the OCR's recent guidance on Title IX is not the ideal way to confront the problem of sexual assaults in the higher education environment. Title IX was not intended to tackle this problem, but has nevertheless become the primary vehicle for doing so. The benefits of doing this far outweigh the downsides, but there are downsides, and it's reasonable to consider these downsides and think about ways to mitigate them. And Professor Halley is right that these downsides will most likely manifest themselves in the "hard" cases: and beyond that, "hard" cases are not "unusual" cases. They're frequently situations in which it is difficult to determine whether encounters were in fact consensual because the participants were using alcohol and/or drugs. I think some people, though, worry that OCR's recent guidance on Title IX (and, maybe more specifically, how some institutions are revising their policies in attempts to comply with it) somehow tilts the balance too far toward the accuser and away from the accused. I'm sympathetic to this point of view generally: how could you not want a system that strikes this balance appropriately? But in practice I'm not seeing a system that has swung too far. What I am seeing is a system that makes it much more likely that people accused of sexual assault will be subject to interim measures, and will be more at risk of expulsion or other sanctions than they would have been just a few years ago. But even under this new model of Title IX enforcement, the risk of a non-culpable actor being found responsible for a sexual assault is still very low. It is fair to say, though, that people who are not culpable will be subject to the discomfort of interim measures and investigation. I tend to think that it's okay if that happens. In any case, I think there's a reasonable discussion to be had about how to fairly address these hard--but common--cases, and this article wasn't a super clear explanation of how to do it.
posted by MoonOrb at 8:29 AM on February 20, 2015 [14 favorites]


I find it much less likely that Halley has decided to destroy her professional career and respected standing in her community by telling porkies. To disbelieve her, you must believe that instead of starting her story with "Here is a hypothetical", she instead carelessly chose to write "I was involved with."

There's keeping an open mind, and then there's letting your brain fall splat to the floor.
posted by five fresh fish at 8:32 AM on February 20, 2015 [16 favorites]


There’s also a certain irony in the contrast between the usual insistence on listening to and believing people’s "lived experience" on the one hand and the refusal to believe the authors first-hand account of a case she has handled personally because it’s "unbelievable" in this thread on the other.

Apparently whether your story is heard or not depends very much on whether the listener wants to hear it.
posted by pharm at 8:33 AM on February 20, 2015 [50 favorites]


What do you imagine her reasons for lying would be?

I don't know! For all I know she might be this guy's lawyer and telling a version of the story that's not accurate and slanted toward his perspective, and it certainly helps that this story happens to line up perfectly with the rest of her article. An unverifiable personal anecdote which just happens to line up perfectly with her position and alleges a servere ongoing violation of some anonymous guy's rights that is so over the top as to beggar belief? Yeah, that's going to make me sit up and look carefully at it.
posted by Pope Guilty at 8:33 AM on February 20, 2015 [5 favorites]


There’s also a certain irony in the contrast between the usual insistence on listening to and believing people’s "lived experience" on the one hand and the refusal to believe the authors first-hand account of a case she has handled personally because it’s "unbelievable" in this thread on the other.

The Oregon case is bizarre enough to warrant more detail than she provides. Even if it turns out that her account is 100% true and she has 100% good reasons to not provide more detail, it was still a bad rhetorical move to include it as she did.
posted by Sticherbeast at 8:36 AM on February 20, 2015 [7 favorites]


I find it much less likely that Halley has decided to destroy her professional career and respected standing in her community by telling porkies.

If only a great journalist like Brian Williams would do some more investigation on this one for us.
posted by Drinky Die at 8:37 AM on February 20, 2015 [4 favorites]


Whether it actually happened - while pretty significant for those involved I'm sure - doesn't strike me as all that important for this thread. We're not the courts or the college or the various parties involved. We're a bunch of Internet onlookers sounding off on what we think is right and wrong.

So it's still a relevant thought experiment that doesn't require us to fact check the author. Would the case as presented be consistent with the requirements of Title IX? Is this really what the law requires us to do to protect a victim? If so, is that law designed as well as it might be so it can work in the best interests of society and the pursuit of justice?
posted by Naberius at 8:41 AM on February 20, 2015 [3 favorites]


I don't know that her example is any stranger than this one, where a student lost a Rhodes scholarship and had his reputation destroyed based merely on an informal complaint, without any factfinding or due process: Under the informal complaint process, specific accusations are not disclosed to the accused, no fact-finding takes place, and no record is taken of the alleged misconduct. For the committee to issue an informal complaint, an accuser need only bring an accusation that, if substantiated, would constitute a violation of university policy concerning sexual misconduct. The informal “process” begins and ends at the point of accusation; the truth of the claim is immaterial.
posted by shivohum at 8:45 AM on February 20, 2015 [15 favorites]


Other candidates for the Oregon case, having thought about it for a moment: Western Oregon University, Eastern Oregon University, Willamette University, Pacific University.

Less likely but possible are the Christian colleges: George Fox, Corban, Multnomah, Marylhurst.
posted by snuffleupagus at 8:45 AM on February 20, 2015


NoxAeturnum, she was saying that because the Title IX office is only concerned with sex and gender issues it risks being completely blind to racial issues in it’s handling of complaints.

Why is this so hard to grasp?


You'll pardon me if her argument comes across to me as an attempt to set minority groups at loggerheads with each other in order to avoid actually dealing with the problem at hand.
posted by NoxAeternum at 8:47 AM on February 20, 2015 [1 favorite]


I won't. Did you need the next paragraph where she proposes what she would so about? This is getting g ridiculous.
posted by spaltavian at 8:51 AM on February 20, 2015 [5 favorites]


Nice moving the goal posts, by the way.
posted by spaltavian at 8:52 AM on February 20, 2015 [2 favorites]


It's a little unfortunate that she limited the description of that person's insitution to something like "a small liberal arts university in Oregon," because that seems to conjure up the notion of "out of control bastion of feminism" in ways that she could have avoided by using other generic descriptions of the university. I tend to think this was a deliberate choice on her part, though, because the description was vague enough that it added nothing to the credibility of the hypothetical but specific enough that it managed to convey a bunch of freighted ideas in ways that "a western university with 4000 students" or something similarly generic would not have.
posted by MoonOrb at 8:57 AM on February 20, 2015 [8 favorites]


That matters how, exactly? It would have reduced the knee jerk couldn't have happened/she's an antifeminist troll response?
posted by rr at 9:01 AM on February 20, 2015 [2 favorites]


You'll pardon me if her argument comes across to me as an attempt to set minority groups at loggerheads with each other in order to avoid actually dealing with the problem at hand.


She wants Title IX to take into account possible racial biases. Intersectionality-- how does it work?
posted by damayanti at 9:07 AM on February 20, 2015 [4 favorites]


In college, a friend of mine was pretty much run out by the administration based on an accusation that he was a peeping tom. A female student caught someone peeking in her dorm window and she called the campus cops. No peeper was found that night. Later, the cops continued their investigation by having the victim sit in a police car outside the dorm and used people coming and going as a sort of line up. She pointed out my friend, who lived in the dorm, and the cops took him in for questioning.

He was not at the dorm that evening. He was at an apartment off campus getting high. I am 100% sure of this, having declined an invitation to join him that night and knowing several of the other people who were there. Problem was, he could not get his alibi established quickly because 1) he didn't want to get anyone in trouble for the weed 2) when it became clear his situation was serious, folks who were there didn't want to fess up because of the weed and 3) when it became clear to them that no shit this guy is going to jail unless you say something, the cops didn't believe the stoner kids who didn't come forward when first asked and besides those kids get high all the time so how do they know what day it is anyways?

It took at least two months for this thing to clear up during which time he was banned from campus and put on suspension, effectively ending his college career at that school. I mean, would you pay another dime in tuition to a school that thinks you're some sort of pervert? It took weeks for him to figure out even what he was being accused of and how serious things were getting - the administration kept stonewalling him and the cops treated him like a perp. Lawyers got involved all around and he eventually won his lawsuit.

The victim was 100% right to call the cops. The campus police and administration, in my mind, totally bungled the investigation. They came down hammer hard on the situation and ruined this guy's college experience. I think that is what this article is about - the problems the schools themselves have in dealing with these sorts of cases now that they have woken up to the fact that yeah, sexual violations are a serious issue that shouldn't be swept under the rug.
posted by robocop is bleeding at 9:08 AM on February 20, 2015 [27 favorites]


I won't. Did you need the next paragraph where she proposes what she would so about? This is getting g ridiculous.

You mean this one?

The best way to correct for this, in my view, is to reduce the Title IX Office to a compliance-monitoring role, and get it out of the business of adjudicating cases. (This would, incidentally, be entirely consistent with the OCR’s announced policy documents.11× ) Cases should go to a body charged with fairness to all members of our community, and with particular charges not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity — not only against complainants but also against the accused.

Which boils down to "hey, let's just go back to the old system, and never mind that the way it has completely failed to actually address the issue of sexual assault on campus is why we're at this particular junction."
posted by NoxAeternum at 9:11 AM on February 20, 2015 [5 favorites]


Anecdote, N=1 and admittedly superficially related. I have a friend of 32 years who is accomplished in his field and (was) a respected professor. He was fired, given 30 minutes to collect his things then publicly escorted by security off the university grounds and slapped with a restraining order because he had confidentially offered to help a gay student with coming out at the behest of this student's parents who had contacted my friend to say their son was having problems. No accusations of any impropriety or any kind of assault. There was no hearing, and it was all done in an hour from the time he was called to the Dean's office. My friend and his husband moved far away, and this once accomplished professional is quite literally working at Starbucks. The university did this to another man the next year, but that dude lawyered up and won.

So no, this is not the same thing, but it shows that academic settings - at least in the one case I know first hand - can err in favor of the people who are paying them rather than the people they employ. Again sample size of one, etc.
posted by digitalprimate at 9:12 AM on February 20, 2015 [6 favorites]


[I'm not sure precisely how salvageable this thread is, but hard topic is hard and it might go better if folks can try and focus on whatever interesting substance there is in the link instead of arguing about how not-great the stuff that's not great is or getting into metacommentary about the thread.]
posted by cortex (staff) at 9:15 AM on February 20, 2015 [7 favorites]


Which boils down to "hey, let's just go back to the old system, and never mind that the way it has completely failed to actually address the issue of sexual assault on campus is why we're at this particular junction."

If I am reading you correctly, then you are actually against the "old way" of the following:
a body charged with fairness to all members of our community, and with particular charges not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity — not only against complainants but also against the accused.
Where, and when, specifically, was this the "old way"? Why should we actively refuse to examine disproportionate impact on minorities, especially racial minorities?
posted by Sticherbeast at 9:20 AM on February 20, 2015 [6 favorites]


The article seems to blame feminism or feminists for these problems, though, robocop. It is clear to every reasonable person that sexual assault is a huge problem on campuses. The author seems to suggest that because the hard cases haven't been solved that feminists have a special obligation to solve them. But it's everyone's responsibility to implement policy that fixes a harm while still respecting everyone's rights and trying our best to solve the hard cases. It's not a special obligation of feminists just because they represent the group that suffers from the harm that we're trying to solve.

"It's clear that something must be done and the question is what in the context of these hard cases." It would be fine to write an article like that. But this article seems to say, "It's clear that something must be done and the question is what in the context of these hard cases, so feminists, what are you going to do about it?" And that seems a little off to me.

I also note that the author seems to consider herself a feminist and yet suggests no solutions to the hard cases herself-only suggesting a reduced role for Title IX, as far as I can tell, which means less attention to the harm. Be the change you want to see in the world, Professor Halley.
posted by Kwine at 9:24 AM on February 20, 2015 [8 favorites]


"Seems to consider herself a feminist"
posted by rr at 9:26 AM on February 20, 2015 [3 favorites]


Well, she doesn't explicitly say she's a feminist, unless I missed something. Did I? But to me it seems from context that she considers herself a feminist. Does it seem that way to you?
posted by Kwine at 9:30 AM on February 20, 2015 [1 favorite]


Ah, she says, "Speaking as a feminist governor to other feminist governors..." The author definitely sees herself as offering a critique of feminism as a feminist.

Thanks for noting that.
posted by Kwine at 9:33 AM on February 20, 2015 [1 favorite]


Where, and when, specifically, was this the "old way"? Why should we actively refuse to examine disproportionate impact on minorities, especially racial minorities?

What she described has always been the sort of mission statement for the traditional discipline bodies at colleges, though it's been something observed in the breach more often than not.

But here's the thing - I think it's telling that all these concerns are suddenly popping up now that the government is forcing schools to actually take sexual assault, rape, and the safety of the female student body seriously.
posted by NoxAeternum at 9:33 AM on February 20, 2015 [4 favorites]


I think it's telling that all these concerns are suddenly popping up now that the government is forcing schools to actually take sexual assault, rape, and the safety of the female student body seriously.

Right. Prompting a discussion about how feminists are having difficulty moving from critics of campus governance to administrators of campus governance (particularly in hard or ambiguous cases) seems to be the point of the OP. Or did I miss something?
posted by (Arsenio) Hall and (Warren) Oates at 9:45 AM on February 20, 2015 [6 favorites]


"It's clear that something must be done and the question is what in the context of these hard cases." It would be fine to write an article like that. But this article seems to say, "It's clear that something must be done and the question is what in the context of these hard cases, so feminists, what are you going to do about it?" And that seems a little off to me.

Did you read the article? In framing the article, she refers to herself as a feminist ("[S]peaking as a feminist governor..."). Her recommendations are directed at other feminist governors, because "it is time to govern". She makes specific policy recommendations concerning a set of Title IX requirements. She is literally talking about what she is talking about, in very concrete terms.

...

What she described has always been the sort of mission statement for the traditional discipline bodies at colleges, though it's been something observed in the breach more often than not.

Really? Always? How many counterexamples would I have to find to show that this is false?

"Observed in the breach more often than not" is what we say when something generally doesn't happen. Is your argument that, since these bodies have quite often not actually existed, even if some rules on paper say otherwise, then...they should never exist?
posted by Sticherbeast at 9:45 AM on February 20, 2015 [2 favorites]


But here's the thing - I think it's telling that all these concerns are suddenly popping up now that the government is forcing schools to actually take sexual assault, rape, and the safety of the female student body seriously.

Yes, the practical issues of doing something tend not to show up until you actually start doing something. She's a feminist, academic and a lawyer with an interest in intersectionality. You have alternately accused her of justifying gay panic, equating Title IX with racist persecution and employing divide and conquer between women and minorities for concerns she has for something that is at the crux of her professional and intellectual pursuits.

She is not some opinion columnist blowhard, she is literally a feminist lawyer who teaches higher education and she's worried about the specific application of Title IX in what she terms "hard cases". Do you seriously think there is any of this she didn't already take seriously before ?
posted by spaltavian at 9:47 AM on February 20, 2015 [37 favorites]


Kwine, I think that is exactly her thesis--that feminists have advocated for, and have now gotten, some of the type of change that they had hoped to get, and now that they've gotten it, they need to be thoughtful about the consequences of the new policies that they had been advocating for.
posted by MoonOrb at 10:02 AM on February 20, 2015 [15 favorites]


[A few comments removed, let's please make an effort to frame stuff carefully and not drag this down into some sort of starting-from-scratch argument about the problem being college students wanting to do things like drink and have sex.]
posted by cortex (staff) at 10:11 AM on February 20, 2015 [2 favorites]


i thought this was a very good article, and am not at all surprised at how much disagreement there is in the comments. My key take away from the article was this line: "These are not just fact questions; they are policy choices."

I see this article as a call for forethought in how difficult cases will be managed, ahead of time, so as to avoid witch hunts (especially against minorities who so often are unprotected in such cases).

I am someone who is constantly re-examining myself, and so it is natural for me to constantly be examining the values I hold and movements I support. It is very easy to misinterpret this examination as attacks -- after all, just look at how many people have conflated this article with the MRA movement! Simultaneously, however, it is very easy for an examination to be conducted or announced at the wrong time or to the wrong audience.

So like I said, i found this interesting, and understand the controversy.
posted by rebent at 10:16 AM on February 20, 2015 [4 favorites]


She is not some opinion columnist blowhard, she is literally a feminist lawyer who teaches higher education and she's worried about the specific application of Title IX in what she terms "hard cases". Do you seriously think there is any of this she didn't already take seriously before ?

Considering her definition of "hard case" (no, just because someone voluntarily got drunk doesn't suddenly complicate consent) and the really mushy argument she makes over Rusk, I think she's failing to see the forest for the trees.

(Seriously, that bit about Rusk is just painful. Yes, there may have been (and most likely were) racial and cultural issues that made the accuser appear more credible than the accused, but the direction she takes it by arguing for cultural differences in expressing consent is...out there.)
posted by NoxAeternum at 10:20 AM on February 20, 2015 [4 favorites]


Considering her definition of "hard case" (no, just because someone voluntarily got drunk doesn't suddenly complicate consent)

Could you possibly be more dishonest? You realize we can read the article too, right?
posted by spaltavian at 10:27 AM on February 20, 2015 [9 favorites]


And it entails a commitment to the idea that women should not and do not bear any responsibility for the bad things that happen to them when they are voluntarily drunk, stoned, or both. This commitment cuts women off — in theory and in application — from assuming agency about their own lives. Since when was that a feminist idea?

This is an especially weak point of her argument. For one, it's a strawman--no one is saying that if you get drunk and fall down the stairs, you have no responsibility for it. Nor is the policy saying that you can't take personal responsibility for your choice to get drunk or consider yourself to have agency in the situation (although frankly, there are times when people lack agency despite generally feeling as though they have agency--this seems like a sort of "duh"--and the fact that other people can remove your agency seems similarly obvious to me and probably anyone who is familiar with the concept of violent crime). The policy she is critiquing does say that if you get drunk and someone has sex with you that you don't want to have, they are responsible in a very specific sense of "responsibility", namely, that Harvard University will find it reasonable to punish you for your conduct.

I have participated in some cases that seemed to boil down to whether or not the adjudicator understood projective identification — the psychic dynamic in which one partner to an intense intimacy projects into the other his or her own fears of and desires for the other, successfully soliciting that person to receive, reproduce, ratify, or enact those fears or desires. Projective identification profoundly confuses the self/other distinction, establishing a kind of intersubjectivity that baffles efforts to determine that patterns in the relationship originated in one of the partners and not the other.

Pretty fucking Freudian and mushy for someone who is trying for an objective judicial process. Funny how it's all about agency and responsibility earlier in the article when we're talking about known intoxicants, and then suddenly it's super important for the arbiters of justice to be aware of how your partner can totally make you do things just by wanting it hard enough.

Or, in other words, it seems that these people chose to enter into these relationships where they were "solicited" to enact the other person's desires. Perhaps they should take some responsibility for choosing to enter into a relationship where a reasonable expectation is this kind of intersubjectivity.

(Typically, the point in an article where someone strongly implies that intimate partner violence may have been unconsciously solicited by the victim, and that the blame in such a situation is therefore difficult to attribute is where I stop reading, and that's what I did here, at least for now.)
posted by internet fraud detective squad, station number 9 at 10:32 AM on February 20, 2015 [11 favorites]


There are a lot of good points in this article, but ultimately it feels like a lot of it is simply intelligent, well-phrased concern trolling, in large part because of the things I quoted above.
posted by internet fraud detective squad, station number 9 at 10:33 AM on February 20, 2015 [7 favorites]


Could you possibly be more dishonest? You realize we can read the article too, right?

Care to explain? Here's what she wrote:

But let’s expose ourselves to the harder cases, where a person complaining about sexual contact as unwanted, unconsented to, or in any other way wrongful, was at the time of the conduct voluntarily altered by drugs or alcohol. It includes sexual contact with a person who is not unconscious but severely impaired. Ditto but only somewhat impaired.
posted by NoxAeternum at 10:39 AM on February 20, 2015 [3 favorites]


And like merely administrative acts conducive to public safety, they follow a strict liability model. But ending or hobbling someone’s access to education should be much harder than that.

What obligations does a private university have to continue to educate its students? Harvard College didn't let me in*, is my education ended? I got into Amherst* and then my spring semester high school grades took a dip because of personal reasons. If they rescind my admission, thereby delaying my matriculation to college, are they hobbling my access to education? What if I agreed when I accepted their offer of admission that they could rescind my admission at any time?

The students at the vast majority of schools agree to abide by the codes of conduct listed by those schools. If such a code prohibits having sex with someone who is drunk, why isn't a strict liability standard acceptable for a private college that is allowed to completely determine the makeup of its student body based on any number of subjective criteria?


*I didn't apply to or attend either of these schools, of course, but pretend that I did
posted by internet fraud detective squad, station number 9 at 10:41 AM on February 20, 2015 [6 favorites]


The answer to that question depends on why you weren't let in or why you were kicked out; it's not as simple as saying that private colleges have unfettered discretion to exclude and expel students. Title IX itself is enforceable against institutions that receive federal funding, so if you're being denied access because of your sex, then you are being denied access to equal educational opportunities even if you're theoretically free to pursue education elsewhere. Similar reasoning applies if you're denied educational access based on some other protected status or if you're denied due process. Critics of the new guidance on Title IX sometimes argue that the balance has shifted so far toward protecting the rights of the accuser that the accused is being denied access to education, and even if you disagree with that argument it's not as simple as just saying that you can go get your education at some other school.
posted by MoonOrb at 10:51 AM on February 20, 2015 [7 favorites]


internet fraud detect squad, station number 9: The author of the article is discussing ending or hobbling someone's access to education upon being accused of something, not upon being found guilty (within the schools own guidelines).

I would say that upon paying tuition you can expect an education (also known as a 'product') from the school as long as you aren't found in violation of their rules.

Personally, I found it quite troubling that people being accused of something aren't necessarily told what they are being accused of.

Honestly though, there is a lot in this thread that I find troubling (waiting for a metatalk thread to appear on the subject).
posted by el io at 10:56 AM on February 20, 2015 [6 favorites]


NoxAeturnum, it's because you're quoting and arguing against one of the introductory sentences to a multi-paragraph discussion, about the fuzzy boundary between: - had a few drinks and consented to sex; - had a few drinks and assented due to fear or social pressure; - had more than a few drinks and consented, but cannot remember doing so; and many more categories.

If you don't think there are complicated questions in the area of sexual assault and drugs, even before throwing in intersectionality, you haven't been thinking very deeply about the issue.

now let us say that two Harvard students — one male, one female — have sex after drinking, using drugs, or both, that each of them feels intense remorse and moral horror about it afterward, and that they both rush the next morning to the Title IX Office with complaints. Let’s say they drop their complaints on the receptionist’s desk simultaneously. Which of them gets the benefit of the per se imputation of unwelcomeness, and which of them carries the heavy handicap of no mitigation?

Under a *formally* equal system, both of them in their complaints against each other should get the benefit of the doubt, as the victim, and in their defence they should not be allowed to rely on their self-induced intoxication. So they should both be found to have assaulted the other in the exact same event. Which doesn't feel right to many people, I would be. You can shift that to deal with (very real) structural problems with regards to gender biases, but that is absolutely a policy choice that you're doing, and you haven't solved the problem of what happens when you don't have a cishet relationship.
posted by Lemurrhea at 11:02 AM on February 20, 2015 [7 favorites]


Care to explain?

It's inclusion as a hard case had nothing to do with "complicated consent"; which was entirely and knowingly your invention.

To my mind, there is no question that she was raped, almost certainly by more than one man. Her injuries as reported by emergency-room personnel could not be explained any other way.
posted by spaltavian at 11:16 AM on February 20, 2015


Similar reasoning applies if you're denied educational access based on some other protected status or if you're denied due process.

What are the due process requirements for private colleges that receive federal funding? I know that there's no one answer, but I'm curious about any cases, standards, or writings on this topic.

____

I don't find the argument that strict liability standards for these kinds of anti-sexual assault/harassment policies will lead to men being denied equal education opportunities based on their sex in a general sense to be at all convincing, although perhaps I could be swayed by better evidence. She uses a hypothetical in which two complainants are completely equal and complain at the same time and then concludes based on no evidence that the man would be considered the guilty party, and therefore Harvard's policy contains sex bias. I do not find that a convincing argument. (She's not actually arguing against a strict liability standard in that section, although it could be reasonably assumed that the argument would apply). In another context, she mentions a case in which an individual has a terrible time because of an unreasonable decision to hold him guilty because he looked like someone's attacker, which is of course a terrible outcome but not actually policy anywhere, nor does it sound like a genuinely systemic problem (and frankly, I think that even a slightly more charitable interpretation of the situation would consider that the student who was accusing him genuinely thought he might be her attacker).

If these people are not being denied educational opportunities based on being in a protected class, but instead because they're unlucky, that is very sad, but much more like the hypotheticals I gave in which a school decided to rescind admission due to a personal crises' affect on grades.

If I might reuse Prof. Halley's rhetorical strategy, perhaps getting kicked out of school despite not trying to rape anyone is one of the "bad things" that young men should take "responsibility" for when they decide to drink or take drugs. (I don't actually think this.)
posted by internet fraud detective squad, station number 9 at 11:18 AM on February 20, 2015 [5 favorites]


What are the due process requirements for private colleges that receive federal funding? I know that there's no one answer, but I'm curious about any cases, standards, or writings on this topic.

From the US Dept. of Education, Office of Civil Rights (pdf):

What are a school’s obligations under Title IX regarding sexual violence?
  • Once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
  • If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
  • A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
  • A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
  • A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
  • A school must notify both parties of the outcome of the complaint.
posted by rtha at 11:42 AM on February 20, 2015 [5 favorites]


If you don't think there are complicated questions in the area of sexual assault and drugs, even before throwing in intersectionality, you haven't been thinking very deeply about the issue.

Oh, I do think there are complicated questions there. I just don't see taking advantage of someone who is voluntarily intoxicated to a moderate or greater degree to be one, and the fact that she placed her bright line there is a problem for me.
posted by NoxAeternum at 11:42 AM on February 20, 2015


That categorically did not happen.
posted by spaltavian at 11:47 AM on February 20, 2015 [1 favorite]


That categorically did not happen.

Sorry, but it did. Because here's the first paragraph of the section:

This very large class of cases includes sexual intercourse or other sexual contact with persons who have been administered mind-altering substances without their knowledge or consent. It is such a grave wrong to impose that experience, along with its vulnerabilities, on another person without their knowledge and consent that I think we can all agree those are among the easy cases: anyone who does that and proceeds to have sexual contact with his victim is a serious wrongdoer. Also among the easy cases: someone having sex with an unconscious person who has not, before falling asleep or passing out, given consent to such contact. No question, people who do either of these things are serious wrongdoers.

At which point, she then goes into the "harder cases", and immediately kicks off the section by discussing "well, consider the matter of when the person is intoxicated of their own volition". It's pretty clear where she's placed her bright line from that paragraph break.
posted by NoxAeternum at 11:55 AM on February 20, 2015 [2 favorites]


I think trying to internet-gumshoe the alleged case described in the article is likely to be fruitless; what is more interesting is to take it as a hypothetical and moot it out, a la the "Case of the Speluncean Explorers". Considering how it would play out given varied interpretations of rules can be illustrative.

I mean, it's not necessarily clear exactly how it should play out. On one hand, you have someone who is a victim to begin with, of sexual assault, and any jurisprudential system ought to have as a goal not furthering their harm, whether actively or through inaction if it has the power to lessen it. So there's a compelling case to do something. But then you have another person who, depending on exactly what details you believe or believe are relevant, caused distress but in a way that was not only unintentional (probably not relevant) but also perhaps unforeseeable (seems relevant), and doesn't seem deserving of punishment. So, how to balance those two competing needs?

I guess my personal response is that it hinges on the difference between unintentional harm and unforeseeable harm. Nobody gives a shit about your intent. But someone who acts in a way that is both not intended to cause harm but that no reasonable person would think ought to cause harm? That seems to be where you need to draw a line. And it is, admittedly, a fine line.

But it's a line that you have to draw, and you have to make clear what behavior and conduct is acceptable or not—objectively, not based on intent—and that's the school's responsibility (as it would be a workplace's if this occurred in a different setting). But it is that definitional responsibility that it seems like schools try to constantly punt on, often, I think, because it requires that they become the arbiter of situations that they would prefer to pretend didn't exist.

A system that punishes, or would punish, unforeseeable harm is bad. A system which doesn't punish foreseeable harm, regardless of personal intent, is also bad. Trying so hard to accomplish the latter that we forget the former will, in the long run, probably lead to a system that does neither as it undermines its own legitimacy. And trying to ensure that the former doesn't occur shouldn't be viewed as an assault on the system in general.
posted by Kadin2048 at 12:04 PM on February 20, 2015 [4 favorites]


I don't find this thread troubling as much as consistant with my view on peoples tendencies to self reinforce. I don't understand "rape culture" and I know I have biases and prejudices. Tell me a story about 4 football players, a motel room, a stripper and rape and I will believe the best of the stripper and the worst of football players and right there is the problem with my thinking.

I live in a neighborhood that used to have a lot of property crime and a sprinkling of violence, shooting across the street, murder on the street, stuff stolen all the time. One time I was working in my garage and a guy cycles past pausing to look in. I think, "crap". Sure enough next day I find my garage has been ripped off. Now I "know" this guy did it, most of my non criminal neighbors would understand and if it was up to us we could call the police and he would be locked up but thats not the way it works. I recognize that the laws that protect that gentleman from my judgement, that allow him to get away with it so to speak, are not meant to protect criminals they are meant to protect me.

Even with the best system of checks and balances you have outcomes like the Central Park 5. I grew up in Manhattan in the 70's and I confess that, (without reading much about it,) I assumed that the innocent kids were guilty. (This is what comes of being chased by groups of brown children and getting harrased and robbed as a child.)

Now I don't think that there is an epidemic of young women falsley accusing upright young men of sex crimes but that doesn't mean that we should craft policy that ignores the damage to the accused and puts the power to adjudicate in the hands of part time novices. In this context Prof. Haley makes good points.

To be sure this is a fraught subject and any steps away from the denial of rape and the deligitimatization of victims is to be welcomed but that doesn't mean we should be so certain about what we think.
posted by Pembquist at 12:10 PM on February 20, 2015 [5 favorites]


I did skim this thread in parts because I came back to it after running an errand, so hopefully this wasn't brought up elsewhere, but here's the problem with that particular story of hers: It's already been seized on for a standalone story by the National Review with no other supporting evidence. Which in turn made it to Reddit and is now being breathlessly read by MRAs there, and I'm quite sure it's going to become part of their ongoing talking points.

Maybe it happened, maybe it didn't. Maybe it looks very different if one knows all the details of the story. Maybe it's just an outlier. But to repeat something like this like it's representative of some wider problem? Even if you're doing it in the Harvard Law Review as a part of a larger story, that doesn't mean it stays on the Harvard Law Review as a part of a larger story. If one is going to claim to be a feminist--and I'm going to say "claim" here because I've seen similar claims from, for example, Christina Hoff Sommers--but if one is going to claim that and give it any legitimacy, then one has to remember how people will use this sort of information once you've put it into the world.

At best, it's irresponsible. At worst, this is another person who is laying claim to feminism but deliberately undermining other feminists and supporting MRAs. I don't really know which it is, but I can't support either. If it's really representative of the way things happen on a regular basis, it shouldn't be based on a single anecdote; if it's not, it doesn't bear repeating.
posted by Sequence at 12:36 PM on February 20, 2015 [5 favorites]


If you really want to get down to brass tacks on this mysterious case, the overarching context is that the potential liability from overreaching in imposing temporary protections that are part an interim investigation mandated by Title IX, and so causing an innocent student economic harm, likely exceeds that from failing to live up to Title IX investigative standards and failing to protect a student from aggravation of trauma related to past sexual violence while said mandated investigation is conducted, causing psychological and economic harm and exposing the school to regulatory sanctions.

With the very sparse account in the article, which is oddly treated as little more than an aside even though the author must have known it would attract attention, it's hard to see how the school would fail to understand that logic doesn't apply to this specific case. Which makes me wonder if some pertinent detail is being omitted. I mean, all detail was omitted, but something that would make it seems less out of left field (and less rhetorically effective). I doubt a Harvard law prof would dissemble in the Harvard Law Review, but professors are still lawyers and lawyers are not above omitting detail that detracts from their point, when they aren't required to include it by rules of court and have client confidentiality and privilege to hide behind. (Regardless of political orientation.)
posted by snuffleupagus at 12:38 PM on February 20, 2015 [1 favorite]


Why do you think an institution faces a greater risk of liability from imposing interim measures against an innocent accused than from failing to adequately investigate an allegation of sexual assault (or otherwise fail to comply with its obligations under Title IX)? In this type of "pick your plaintiff" situation it seems like it's a no brainer to err on the side of imposing interim measures: they're both required by Title IX and, by their very nature, temporary. I see you said "overreaching," though-- so maybe I'm not reading you correctly. Are you talking about a situation where a school would skip the process entirely and, say, expel a student based on an univestigated complaint?
posted by MoonOrb at 12:54 PM on February 20, 2015 [2 favorites]


I did skim this thread in parts because I came back to it after running an errand, so hopefully this wasn't brought up elsewhere, but here's the problem with that particular story of hers: It's already been seized on for a standalone story by the National Review with no other supporting evidence. Which in turn made it to Reddit and is now being breathlessly read by MRAs there, and I'm quite sure it's going to become part of their ongoing talking points.

None of that speaks to it's truth or falsity. None.

If one is going to claim to be a feminist--and I'm going to say "claim" here because I've seen similar claims from, for example, Christina Hoff Sommers--but if one is going to claim that and give it any legitimacy, then one has to remember how people will use this sort of information once you've put it into the world.

If one is going to be a feminist, if one in fact truly is a feminist, one isn't going to try to "edit" information or deny other people agency. That's fundamentally incompatible with feminism, or any other political movement with it's philosophical underpinnings in egalitarianism. The idea that a woman should edit her telling of truth for political correctness is deeply and fundamentally anti-feminist. Not even feminist political correctness, for avowed anti-feminist MRA political correctness. You're privileging the reaction of insane regressive men over what might well be the actual truth.

Now, if she completely made it all up, then yes, that's anti-feminist and horribly shitty, but the "zomg can't give the Reddit MRAs any ammo ever!" concern trolling is vastly more anti-feminist than anything Janet Halley has proposed, apart from the fact that it's crappy political strategizing, because MRAs are going to MRA anyway, their ideology mostly isn't fueled by empiricism anyway, truth doesn't matter to them and it never will.

Feminism: not the Ministry of Propaganda or a fucking PR firm.

With the very sparse account in the article, which is oddly treated as little more than an aside even though the author must have known it would attract attention, it's hard to see how the school would fail to understand that logic doesn't apply to this specific case. Which makes me wonder if some pertinent detail is being omitted.

If the story is true, and I suspect that it is, I would lay money on the table that there's a complicating factor of identity politics or intersectionality involved that has them scared absolutely shitless.
posted by The Master and Margarita Mix at 1:01 PM on February 20, 2015 [22 favorites]


Thanks, rtha. I'm also interested in due process requirements in different scenarios than sexual assault or harassment. Eg are there due process requirements for schools who wish to punish a student for plagiarism?
posted by internet fraud detective squad, station number 9 at 1:12 PM on February 20, 2015 [2 favorites]


To my knowledge, there isn't a federal Title IX equivalent for academic integrity, so the form of the process would be up to the governing bodies of the institutions, rather than the Feds. It would be comparing apples to oranges.
posted by spaltavian at 1:17 PM on February 20, 2015


meta
posted by twist my arm at 1:29 PM on February 20, 2015 [1 favorite]


> Eg are there due process requirements for schools who wish to punish a student for plagiarism?

Yes, but I don't believe those are mandated at the federal level. State universities may have state requirements, but private ones will likely have just what they themselves establish (as long as those rules don't violate state/federal law, of course).
posted by rtha at 1:44 PM on February 20, 2015


I didn't say that makes it false, The Master and Margarita Mix. But the context in which you bring stuff up matters. Being a law professor writing a law review article, you're calling on a really heavy degree of implied authority in the subject matter. Anecdotal evidence should, under the circumstances, have to be incredibly important and incredibly relevant in order to be worth mentioning. Not just true. The thing that makes this MRA fodder is not just that somebody said it happened once, but that the mode of publication gave it a very high degree of authority and implied that it was representative.

I mean, I had to have my car towed once because the guy from the towing company that AAA sent out to jump start it turned out to just... not know how to jump start my model of car. It was ridiculous. It was frustrating. It wasted my time and money and energy. It does not mean anything like "AAA only employs incompetent service providers and won't be able to jump your car if you left your lights on". It might mean "just because you can't jump the car doesn't mean your battery needs replacing (or worse)". The anecdote's use as evidence depends very much on where it's presented and how. There is such a thing as using a platform irresponsibly.
posted by Sequence at 1:59 PM on February 20, 2015 [3 favorites]


Why do you think an institution faces a greater risk of liability from imposing interim measures against an innocent accused than from failing to adequately investigate an allegation of sexual assault (or otherwise fail to comply with its obligations under Title IX)? In this type of "pick your plaintiff" situation it seems like it's a no brainer to err on the side of imposing interim measures: they're both required by Title IX and, by their very nature, temporary. I see you said "overreaching," though-- so maybe I'm not reading you correctly. Are you talking about a situation where a school would skip the process entirely and, say, expel a student based on an univestigated complaint?

Drat. We agree. I reworded my comment on preview and should've changed 'exceeds' to 'is exceeded by,' thus:

the potential liability from overreaching in imposing temporary protections that are part an interim investigation mandated by Title IX, and so causing an innocent student economic harm, is likely exceeded by that from failing to live up to Title IX investigative standards and failing to protect a student from aggravation of trauma related to past sexual violence while said mandated investigation is conducted, causing psychological and economic harm and exposing the school to regulatory sanctions.


The idea being that wronging the innocent student with the resemblance causes economic damages, but wronging the student with the past trauma potentially causes economic damages, emotional/psychological damages, and invites governmental sacntions. Plus, the Title IX interim investigation and protection requirements potentially provide a defense against overreach in the first scenario (although maybe not on these facts, or what little we have of them, given the facial unreasonableness of the interim measure, in light of the excluded student's non-responsibility for the harm to the complaining student. That's why I wonder if the student with the resemblance maybe refused to honor a more reasonable, informal request by the complaining student that he stay out of her dorm, or not attempt to socialize with her, etc.)
posted by snuffleupagus at 2:04 PM on February 20, 2015 [1 favorite]


I didn't say that makes it false, The Master and Margarita Mix. But the context in which you bring stuff up matters. Being a law professor writing a law review article, you're calling on a really heavy degree of implied authority in the subject matter.

Argument from authority is a fallacy. That said: if the story is true, and there's no particular reason to disbelieve Janet Halley on that front, there is no "irresponsible" context in which to bring it up. This kind of quasi-political, PR-ish, image-focused argument has been used historically to silence rape victims, sexual harrassment victims, and so on. It's ethically, politically, morally vacuous, and if you ascribe to that view, of "the public image of feminism is more important than the actual truth", you're anti-feminist.

And, as you yourself point out: it's one anecdote. If it really happened, it's not hard to bring up a deluge of evidence against the idea that it's pervasive, or that most rape claims are false, or whatever nonsense the MRAs want to make up. MRAs literally already believe this happens all the time, and that it happened once is not actually an obstacle to pointing out to sane people that however much it happens, mishandling of valid rape accusations happens more. Lots more.

Do you think it would be impossible to craft a policy for handling allegations that doesn't deal better with false rape accusations than the current system? That it's somehow at odds with creating a system that handles them even, say, 25% better than the current system, which is complete and utter garbage? Seriously, what the fuck are people afraid of here?

Stop calling yourself a feminist if you are afraid of having to do the work of feminism. That's all I see in this line of reasoning.
posted by The Master and Margarita Mix at 2:16 PM on February 20, 2015 [4 favorites]


MetaFilter: Drat. We agree.
posted by MoonOrb at 2:19 PM on February 20, 2015 [7 favorites]


Argument from authority is a fallacy.

No, argument from false authority is a fallacy.

Arguing that a law professor writing a law review article has a heavy degree of authority is not a fallacy.
posted by Justinian at 2:36 PM on February 20, 2015 [10 favorites]


Quite. Not every appeal to authority is a fallacy, especially when not making the appeal to avoid engaging the substance of a counter-argument, and doubly so when the authority is one's own and is contextually inherent rather than asserted as evidence (which it is not).
posted by snuffleupagus at 2:53 PM on February 20, 2015 [1 favorite]


Arguing that a law professor writing a law review article has a heavy degree of authority is not a fallacy.

In this case, it's not a counter-argument to the idea that PR feminism is actually anti-feminism. Y'all knock yourself out showing off your nitpicking, derailing, and concern trolling chops, though.

Like, I'm sorry, do you have a salient fucking point to make?
posted by The Master and Margarita Mix at 3:30 PM on February 20, 2015


PR feminism

What is this? (You're the only one who seems to have used it in this thread, and I don't understand what it's supposed to mean.)
posted by rtha at 3:32 PM on February 20, 2015 [3 favorites]


Like, I'm sorry, do you have a salient fucking point to make?

Yeah, my point was that arguments from false authority are a fallacy, not arguments from all authority.
posted by Justinian at 3:34 PM on February 20, 2015 [3 favorites]


What is this? (You're the only one who seems to have used it in this thread, and I don't understand what it's supposed to mean.)

Anti-feminist "but what about the MRAs?" concern trolling masquerading as feminism. There's no real reason to doubt that Janet Halley is telling the truth about the incident with the one male student who was essentially given a campus restraining order based on a passing resemblance to a female student's rapist. The argument that she has some kind of "responsibility" not to speak about it because of MRAs is also anti-feminist, in the exact same way that female activists in political movements being told not to speak about transgressions against them by the leaders of those movements "because of the damage it would do to the movement" is anti-feminist. It's the same argument, same dynamic.
posted by The Master and Margarita Mix at 4:00 PM on February 20, 2015 [3 favorites]


This thread has been very enlightening. I now understand how the MRA types have come to use "social justice warrior" as a pejorative. A whole lot of this thread has been a big turn-off: too many of the people who have previously helped develop my understanding of social justice causes have been rather too unwilling to approach the hard cases with an open mind and willingness to allow that hypervigilance can result in victimization of another group. This blinkered attitude has been a disservice to discussion and has only served to fuel the fires of MRA douchbaggery. This is not a good way to advance the cause of feminism.
posted by five fresh fish at 4:04 PM on February 20, 2015 [12 favorites]


There's no real reason to doubt that Janet Halley is telling the truth about the incident with the one male student who was essentially given a campus restraining order based on a passing resemblance to a female student's rapist.

Wait, now I'm confused. You believe Halley, or you disbelieve Halley? It sounds like you believe the account, yet still think the author's agenda is crypto-MRA anti-feminist concern trolling dressed up as 'PR feminism.' In which case, if the account isn't being doubted, I'm not sure why you'd be trotting out the logical fallacy canard.

And while I happen to doubt she's fabricating anything, the mention was incomplete and so one wonders if there isn't more to the story, that would if anything undercut its effectiveness as MRA-fodder, whether or not that was the author's intended purpose.
posted by snuffleupagus at 4:19 PM on February 20, 2015


Wait, now I'm confused. You believe Halley, or you disbelieve Halley? It sounds like you believe the account, yet still think the author's agenda is crypto-MRA anti-feminist concern trolling dressed up as 'PR feminism.' In which case, if the account isn't being doubted, I'm not sure why you'd be trotting out the logical fallacy canard.

What? "PR feminism" refers to the argument that because the misogynists will have a field day with this story, the story shouldn't have been told, or should have been told differently. It's a tag for people in the thread, not the writer of the OP.
posted by Rustic Etruscan at 4:30 PM on February 20, 2015 [4 favorites]


Wait, now I'm confused. You believe Halley, or you disbelieve Halley? It sounds like you believe the account, yet still think the author's agenda is crypto-MRA anti-feminist concern trolling dressed up as 'PR feminism.'

I believe Halley. I think the concerns that it's all crypto-MRA false flag operations are anti-feminist concern trolling and I believe this fatuous notion that Halley has some kind of duty or responsibility to "consider the implications" of talking about the incident (assuming it's true) are also anti-feminist concern trolling, that not to put too fine a point on it rest on some incredibly fucked up ideas about what feminism is or should be.

If it happened, there's nothing irresponsible about Halley talking about it. The view that if it happened, she should in some way shut up about it or edit it or "consider the context" and basically suppress a politically uncomfortable truth and incident of injustice for the sake of appearances is not just unfeminist or anti-feminist, that's veering directly towards actively, malevolently evil.
posted by The Master and Margarita Mix at 4:33 PM on February 20, 2015 [4 favorites]


"Don't give MRAs ammunition" is also, from a purely cynical, tactical political perspective, shitty feminism because it wouldn't be effective and has the potential to backfire spectacularly. It's really an argument that serves to do nothing but keep putatitive feminists in power, as opposed to empowering feminism, if you see the difference. I'm still kind of reeling that people in this thread are apparently making that argument with a straight face.
posted by The Master and Margarita Mix at 4:38 PM on February 20, 2015 [7 favorites]


It's a tag for people in the thread, not the writer of the OP.
Ah, alright. Thank you.

I believe this fatuous notion that Halley has some kind of duty or responsibility to "consider the implications" of talking about the incident (assuming it's true) are also anti-feminist concern trolling...

I'm still kind of reeling that people in this thread are apparently making that argument with a straight face.

Well, speaking for myself, I don't want Halley to silence herself, I'd like her to elaborate. I think that 'considering the implications' it's curious that she didn't say more about the case. She must of known it would have a rhetorical impact. She deployed it as a closer of sorts.

Y'all knock yourself out showing off your nitpicking, derailing, and concern trolling chops, though.

If you're talking about MoonOrb, Justinian and myself, you are talking about people with law degrees (two of whom are smarter than I am) in a discussion about a law review article, having a similar reaction to the vagueness of the mention of such an odd case, in an article about 'hard cases' (linked to the maxim, 'hard cases make bad law'). I'm pretty sure we'd all like to hear more about this particular hard case, not less.

The people eager to use it as anti-feminist trollbait don't want more information. They'd prefer it stay vague, it's probably better speculatory blog-fodder if unelaborated and can pass into amorphous urban legend if not discredited.
posted by snuffleupagus at 5:23 PM on February 20, 2015 [5 favorites]


If you mean we have law degrees, I don't have a law degree. Although I did stay at a Holiday Inn Express last night. My degree is in biotechnology.
posted by Justinian at 5:25 PM on February 20, 2015 [1 favorite]


Is that right? Huh. I thought you were a lawyer for some reason. Apologies.
:P
posted by snuffleupagus at 5:27 PM on February 20, 2015 [1 favorite]


He got a restraining order against the flu virus for me back in 2007 and so far it's been honored.
posted by Drinky Die at 5:30 PM on February 20, 2015 [2 favorites]


It's because, like a lawyer, I am annoying and never stop talking.
posted by Justinian at 5:31 PM on February 20, 2015 [7 favorites]


"Critics of the new guidance on Title IX sometimes argue that the balance has shifted so far toward protecting the rights of the accuser that the accused is being denied access to education, and even if you disagree with that argument it's not as simple as just saying that you can go get your education at some other school."

And it's worth noting that the critics of attempts to curtail the prevalence of on-campus rape make this same complaint every single time any corrective action is taken. It's the "to create jobs, cut taxes!" of anti-feminist sexual assault rhetoric.

"That said: if the story is true, and there's no particular reason to disbelieve Janet Halley on that front, there is no "irresponsible" context in which to bring it up. "

That's an inane contention. First off, something can be true but framed in an inflammatory or misleading way. If Halley was involved, it's likely that she took a position on behalf of the student — defense lawyers say things all the time that are true but framed in a way that is more advocacy than fact. Without further details, deciding whether this is an unbiased account of the facts or whether it's an advocate's position based on a selected reading of facts is difficult.

Secondly, there are irresponsible points to bring up an argument such as this, e.g. at a time that would impugn the credibility of another complainant not directly connected to the case. In other words, when the anecdote would be prejudicial.

You may disagree that it is prejudicial in this case and you may believe that Halley's account is an unbiased recitation of facts, but that does not mean that others must make the same judgment nor that this is a true and relevant anecdote at all times.

All of us have times when our vehemence outstrips our argument. This is one of those times.
posted by klangklangston at 5:34 PM on February 20, 2015 [7 favorites]


can pass into amorphous urban legend if not discredited.

I should probably clarify, I mean the MRA-blogger citations of the bare mention can pass into urban legend with their framing if not discredited — by means of knowing more about the case to frame it as an aberration under Title IX.

All of us have times when our vehemence outstrips our argument. This is one of those times.

Maybe, maybe not. That's why it would be good to know what actually happened. There's no need for the name of the school or the students, ultimately, but the actual fact pattern would be nice.
posted by snuffleupagus at 5:35 PM on February 20, 2015 [1 favorite]


I do think that articles like this are important, and that there are a lot of hard questions. I think that articles like this are important because Halley does a good job of articulating a lot of the complaints in a way that's fairly forthright and intelligible — that gives a good foundation for counter-arguments and discussions about how policies should work, especially because it's far less focused on the particulars of any one case (aside from the poor use of a vague and terrible anecdote at the end). Any reasonable policy should have answers for questions like this.

I also think that the unfortunate reality is that the ultimate choices are either essentially condoning further rapes by not acting strongly to prevent them or punishing innocent people due to imperfect process. I'd like a way to resolve that, but I haven't seen one yet and I don't think it's unfair to say that most reasonable people should be uncomfortable with either option.
posted by klangklangston at 5:44 PM on February 20, 2015 [3 favorites]


"Maybe, maybe not. That's why it would be good to know what actually happened. There's no need for the name of the school or the students, ultimately, but the actual fact pattern would be nice."

I meant the M&M argument, not the Halley one. Sweeping claims compounded by a crusade against evil need to have firmer footing.
posted by klangklangston at 5:46 PM on February 20, 2015


That's an inane contention. First off, something can be true but framed in an inflammatory or misleading way. If Halley was involved, it's likely that she took a position on behalf of the student — defense lawyers say things all the time that are true but framed in a way that is more advocacy than fact. Without further details, deciding whether this is an unbiased account of the facts or whether it's an advocate's position based on a selected reading of facts is difficult.

I think what's likely is that her vagueness is due to the fact that it's apparently ongoing and she's involved in a mixture of CYA and also protecting both students privacy, since naming them or giving more details could cause them both a ton of grief, and which she might then be liable for.

She doesn't seem to be any more or less detailed in that case than most of the other anecdotes she brings up. For the ones in which she named names, using first names only, those details had already gone public because of criminal proceedings or news coverage. As far as I can tell she's completely consistent in preserving anonymity or pseudonymity and not giving out identifiable details unless it's a case that's been made public, but even then, she doesn't go any further than what's already out there. I'm not seeing any evidence of a double standard, certainly.

This is exactly the kind of case that, for good but not fair reasons, makes feminists twitchy because yes, on the surface of it, it plays right into MRA narratives. Rationally, there's no basis to assume it didn't happen, that she's lying, or that she's being uniquely protective of the male student for nefarious reasons because she's an MRA plant, but emotionally and politically for feminists who are weary of the false rape accusation straw man, there are plenty of reasons to try and poke holes in it, and what's inane is to completely ignore that as a motivation for these arguments. In fact, that's behavior that happens again and again and again, even in the history of feminism: this particular case has bad optics, therefore, shut up about it. It's understandable and in a way even reasonable, but yeah, giving into it is evil. It's wrong, and it doesn't work.
posted by The Master and Margarita Mix at 6:22 PM on February 20, 2015 [4 favorites]


My notes on this article: (1) I don't think investigations of complaints and their conclusions, as cases, should vary depending upon the race of the accused assailant. I do think that record-keeping and reporting should occur on all demographics and if the system is having a disparate impact that is very concerning and something to be assessed and possibly responded to with reforms. (2) I don't buy this idea that system unfairness occurs because consent gestures vary by culture. I mean, yes, I'm sure they do vary by culture. But I think ambiguity occurs, you know, with all kinds of "diverse" groups. Ambiguity is often a theme in these disputed cases with all different ethnicities. (3) The quoted portions of the training seem silly out of context. Agree that investigators should be trained as actual investigators, who assess evidence and credibility. (4) The TV show Switched at Birth, popular with teenage girls and urban spinsters, did a better job on this issue.
posted by ClaudiaCenter at 9:57 PM on February 20, 2015 [3 favorites]


(5) The case of the subjectively but not objectively harassed female employee -- that would be handled the same way today, in my opinion. The author's point is exaggerated. There might be more workplace harassment prevention work being done today, but not causing the problem suggested. (6) I agree that exclusion-from-college (or big parts of a college) orders should not be issued as "administrative" edicts without process. Am not sure that such orders are "easy" to obtain. That point again might be exaggerated, but I can't say for sure because I don't work in that area.
posted by ClaudiaCenter at 10:15 PM on February 20, 2015 [3 favorites]


CU-Boulder paying 'John Doe' $15K to settle Title IX lawsuit stemming from sexual assault case

"CU-Boulder has created an environment where an accused male student is fundamentally denied due process by being prosecuted through the conduct process under a presumption of guilt," John Doe's lawyers wrote in their lawsuit. "Such a one-sided process deprived John Doe, as a male student, of educational opportunities at CU-Boulder on the basis of his sex."
posted by Drinky Die at 12:04 PM on February 21, 2015 [1 favorite]


$15k is what most large institutions would consider "nuisance value" money, if that helps put that story in perspective. Not every institution settles cases they consider nuisances, but a settlement that low combined with the student's agreement to withdraw from CU suggests that this wasn't a suit with much merit. I don't know that it's worth drawing any particular inference from a story about a case settled for a relatively small amount of money, but if I were to draw an inference, I'd infer that neither "John Doe" nor the university considered the university's risk of liability to be very high.
posted by MoonOrb at 12:18 PM on February 21, 2015 [3 favorites]


Yeah, it should be highlighted that the process found him guilty under the preponderance of evidence standard. Maybe the process works, maybe it doesn't, but a lot of the more compelling "You might have a point here..." stories are about the temporary administrative actions during investigation and men who were not found guilty under that process who have still had their name spread all around.

It seems like everybody involved made an effort to keep his name from being known. That is a good thing. Other schools will still be able to look at his records if he applies there, that is also a good thing. It can't just turn into the Catholic Church transferring offenders all around.
posted by Drinky Die at 12:23 PM on February 21, 2015


This thread has been very enlightening. I now understand how the MRA types have come to use "social justice warrior" as a pejorative. A whole lot of this thread has been a big turn-off: too many of the people who have previously helped develop my understanding of social justice causes have been rather too unwilling to approach the hard cases with an open mind and willingness to allow that hypervigilance can result in victimization of another group. This blinkered attitude has been a disservice to discussion and has only served to fuel the fires of MRA douchbaggery. This is not a good way to advance the cause of feminism.

Care to be more specific? Or actually engage with a specific argument?
posted by internet fraud detective squad, station number 9 at 12:24 PM on February 21, 2015


There's no real reason to doubt that Janet Halley is telling the truth about the incident with the one male student who was essentially given a campus restraining order based on a passing resemblance to a female student's rapist.

Rationally, there's no basis to assume it didn't happen, that she's lying,

I agree that she's not likely doing something that would be considered "lying" but I think there's a very rational case to be made for her spinning it or otherwise leaving out pertinent details that would significantly change the way we would respond to the case.
posted by internet fraud detective squad, station number 9 at 12:34 PM on February 21, 2015 [4 favorites]


In fact, that's behavior that happens again and again and again, even in the history of feminism: this particular case has bad optics, therefore, shut up about it. It's understandable and in a way even reasonable, but yeah, giving into it is evil.

You realize you're literally saying that people in this thread are doing something evil, right? That seems really extreme.
posted by internet fraud detective squad, station number 9 at 12:38 PM on February 21, 2015 [3 favorites]


You realize you're literally saying that people in this thread are doing something evil, right?

How would you characterize engaging in character assassination and conspiracy theorizing about someone writing on a topic? People couldn't even be bothered to click through to the article before rolling out accusations of being an MRA troll. The reaction in this thread is exactly what Chait's essay was about.
posted by rr at 6:21 PM on February 21, 2015 [5 favorites]


(7) (Disclaimer: I'm not on top of what is going on at this site, if anything.) I agree with commenter NoxAeternum to the extent that -- I think the writer's use of Boys Don't Cry and To Kill a Mockingbird is edgy (I would ordinarily use the word "provocative," but that seems wrong here). The use of TKAM (as a reference) implies (to me) that having a Title IX office for investigating on-campus sexual assault complaints is not consistent with fair treatment of respondents who are black students, see everyone-knows example of legal framing of black man resulting in death. Which is an edgy thing to say.

I agree (of course) with due process and investigators who use high standards including appropriate assessment of evidence. And with demographic record-keeping including on race and other statuses. And then maybe I think, for a moment, the writer's TKAM reference while edgy perhaps supports the establishment of due process and investigative standards, which is a good outcome. But I would want those protections for all students, it's supposed to be a community. And I worry that the writer would prefer no internal system than an improved internal system.

Can't we all work together? Agree with NoxAeternum on that, it sort of sets minority groups at loggerheads. Maybe we could come up with and largely agree on an administrative system that is fair and that deters and remedies sexual assault. (That sounds naive coming out of my keyboard.) So I have a similar (but distinct) reaction.
posted by ClaudiaCenter at 8:34 PM on February 21, 2015


There's definitely a good law review article that might be written about college investigations into sexual assault; this is not it. As a law professor she should certainly be aware that the laws of many jurisdictions presume that an intoxicated person is incapable of consenting to sex; why does she fail to recognise this? Why does she drag out her hypothetical in which both parties are intoxicated, as if nobody had ever contemplated it? It's an obvious issue, but it's no more conceptually difficult than two drunks fighting each other.

I'm not confident that she's giving us the full story about the young man she assisted, the one "who was ordered to stay away from a fellow student [...] because he reminded her of the man who had raped her". Her presentation is suspiciously partisan for a law review. She needs to present her argument, not his grievance. I think a neutral presentation of the facts would be more like this:
A woman accused a young man of being a rapist who had assaulted her "months before and thousands of miles away". He was ordered to stay away from her during the investigation, which took a month, but he was ultimately cleared of the charge. The college failed to follow up on its investigation, though, and did not withdraw the protective order against the young man.
If those are the facts then I can't really fault the college for the initial order or the speed of its investigation. It sucks to be that young man, but it's probably better to inconvenience suspects than cause further harm to victims. The conclusion, in which the college allegedly failed to inform him or withdraw the protection order against him, is cause for criticism - but that has nothing to do with rape laws generally: it's bad administration, which is a different and more general matter. As for her criticism of the "month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them, [which was] an immense invasion of his and his friends’ privacy" – well, cry me a river: he had been accused of rape; does she not want these things investigated at all?

I previously argued colleges should not investigate criminal allegations; that college administrators lack the expertise and the safeguards found in the genuine legal process. This author comes remarkably close to making me change my mind: how are women to be protected from apprehended violence when the local police cannot or will not investigate? College investigations and disciplinary orders are the only protection these women have. Perhaps Janet Halley meant the article as something of a Trojan Horse, to subtly insert this scenario into the minds of people that think as I do. If this turnaround was the author's secret objective then she has succeeded. Well played; well played indeed.
posted by Joe in Australia at 8:42 PM on February 21, 2015 [6 favorites]


Halley specifically emphasizes that the student reminded the woman of her rapist, not that she was accessing him of rape. She tells his story in the context of another story regarding someone who was making unsubstantiated accusations. Your rewording is not neutral, it is purest fantasy.
posted by five fresh fish at 11:02 PM on February 21, 2015 [3 favorites]


Do you understand Halley to be saying "the female student thought the young man looked like her assailant, but she acknowledged that it wasn't the same guy"? Surely not: why do you think the college instigated "a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them"? I'm pretty sure that when Halley says the young man reminded the female student of her assailant she means "the female student thought the young man probably was her assailant", but the college determined that this was not the case.
posted by Joe in Australia at 11:16 PM on February 21, 2015 [1 favorite]


"How would you characterize engaging in character assassination and conspiracy theorizing about someone writing on a topic? "

From this thread? Maybe "irritating" or "incoherent." "Just a little more ridiculous than 'character assassination' puffery," that'd work too.

"Halley specifically emphasizes that the student reminded the woman of her rapist, not that she was accessing him of rape. She tells his story in the context of another story regarding someone who was making unsubstantiated accusations. Your rewording is not neutral, it is purest fantasy."

Joe's reading is still possible; the claim of "reminded" would also include the person who it actually was. And it's not far to backfill from the resolution — if Halley assumes that the student's underlying complaint (the assault) was true, that the university process cleared the accused so it couldn't have been the person who committed the assault, ergo he can be described as someone who reminded the complainant of the accused. It's tendentious, but advocates are paid to be tendentious.

There are too many carefully chosen words to know how salient the case is to her argument and it's a pretty inflammatory anecdote so it makes sense to apply some of the same skepticism to her article.
posted by klangklangston at 11:18 PM on February 21, 2015 [6 favorites]


"I'm really super concerned about how to make feminism be the most fair and effective it can be on a practical level. Isn't that important? Isn't everyone on my side for this? Okay, now let's talk about the plentiful 'hard cases' of all those lying, crazy, drunken promiscuous women and how our policies need to be shaped to handle them, lest some man have a right violated."
posted by nom de poop at 1:42 AM on February 22, 2015 [3 favorites]


I don't think Halley would disagree with that synopsis of the article--that's exactly what this article is about, and it's referred to in the title--moving from advocacy to governance means as a consequence you have to do things like care about how this affects men. I don't take her as being sneaky about this at all, this is literally a "what about the men" article. I think it's a not great "what about the men" article, but there's not much artifice to it. That's what it is and she says as much.
posted by MoonOrb at 7:35 AM on February 22, 2015 [3 favorites]


I'm really super concerned about how to make feminism be the most fair and effective it can be on a practical level.

If practical is political, then very likely yes, because it's a sensitive cultural issue going into an election cycle against a political machine currently gearing up to run against a woman. When the dark money ads appear in swing states like Ohio asking people not to vote for those who would put innocent males in ankle braces (or whatever), it will be a bonus that Halley took point and addressed the issue first, if nothing more than to prepare for the attack.
posted by Brian B. at 8:15 AM on February 22, 2015 [1 favorite]


I give up. Halley clearly expressed why she has written this paper. She uses simple clear language to illustrate her points. She explicitly defines the context for her concern. It is not a hard essay to understand.

But instead of actually reading her plain text, most everyone is much more invested in a circle jerk of denigrating her, fantasizing new stories based on the cases she presents, and painting her as an enemy.

It has been a complete shitshow driven by a core group that demands an ideological purity that disallows criticism of the misapplication of policies that support their cause, is intolerant of nuanced discussion, invents fantastical stories in lieu of accepting things at face value, and which viciously tears down any figure of authority that dares counter their black and white worldview.

Halley's thesis is that agitating and adjudicating are markedly different. She lays it all out simply and clearly: the judicial role needs to maintain impartiality for the sake of both parties, and she illustrates why. This thesis should not be cause for a shitshow, and turning it into a shitshow has not done the feminist or social justice movement any favours. Quit turning this place into another reddit.
posted by five fresh fish at 8:28 AM on February 22, 2015 [12 favorites]


Yes but although her thesis is clear, there's a lot left to be desired in the way she's communicating this message, and some of her rhetorical choices fairly call into question whether she's in fact as supportive of the feminist ideals that she lays claim to supporting. It shouldn't be surprising that it's provoked such strong reactions considering how much of a mess she made of the argument. If she had stopped at her thesis statement and said nothing more, the reaction would just be a big collective shrug. But how she developed and supported her arguments here was kind of crappy and invites all kinds of criticism.
posted by MoonOrb at 9:01 AM on February 22, 2015 [5 favorites]


Reflecting on this some more, I want to walk back my statement that "the reaction would just be a big collective shrug." I think her poorly supported argument, questionable choices of examples, and some icky rhetoric exacerbated problems with her position, but I after thinking about it some more, I don't know if I buy even the foundation of her argument, which I see as being built upon this statement:

But as feminists issue a series of commands from within the federal government about what the problem of campus sexual violence is and how it must be handled, and as they build new institutions that give life to those commands, they become part of governmental power. Now that they have the power to adjudicate cases and determine sanctions, they are facing the full range of cases.

I don't necessarily agree that "feminists.... [have] become part of governmental power" or that feminists "now ... have the power to adjudicate cases and determine sanctions." It's the Department of Education's Office of Civil Rights that enforces Title IX, and it's higher education institutions that implement its requirements on their respective campuses, and I don't know that either the OCR or higher education institutions as a whole can presumed to be such a powerful bloc within these structures that it's appropriate to say "okay, feminists, you're governing now."

I tend to think that if the OCR and higher institutions were largely controlled by feminists we might not even need all of the recent guidance on Title IX because higher ed institutions would not have had to have been compelled by governmental action to get serious about addressing sexual assault. There are probably some higher education institutions where there are enough feminists in positions of authority that it could be fairly said they have the ability to govern, and maybe Halley's viewpoint in this regard is shaped by the institutions with which she's familiar.

But if I were to look at the historical responsiveness of higher ed institutions to the problem of sexual assaults on their campuses, it's really tough for me to conclude that these institutions are governed by feminists.

So I think there is something deeply problematic at the very heart of her argument, something I missed when I was thinking about it at first, because I took at face value the underpinnings of her position.
posted by MoonOrb at 11:38 AM on February 22, 2015 [8 favorites]


How would you characterize engaging in character assassination and conspiracy theorizing about someone writing on a topic?

From people with no power over that person or her reputation? Here are a few: Misguided. Discussion. Spitballing. Unpleasant. Unjustified. Somewhat paranoid. Reasonably suspicious. Cynical.

Evil is a bit much. And do keep in mind that the accusation of evil had nothing to do with character assassination or conspiracy theorizing and that I'm humoring you by acting as though it did.

The original accusation was that it was evil to suggest that other feminists should not discuss cases that looked bad.
posted by internet fraud detective squad, station number 9 at 12:15 PM on February 22, 2015 [2 favorites]


the judicial role needs to maintain impartiality for the sake of both parties, and she illustrates why

Maybe the problem lies in that, precisely - in the assumption of the judicial role, rather than the preventative role, for the protection of women and the prevention of sexual violence, which is largely practiced against women.

Judicial roles need to maintain impartiality. Preventative roles do not. Preventative roles can say "If you can't stop having sex with people who are drunk, then no alcohol on campus." Preventative roles can also say, "It is a component of our honor code that no male student will have sex for the first time with a female student who is visibly intoxicated." Preventative roles can create single-gender dormitories with no opposite-gender visitors after certain hours. They don't have to be "fair." They don't have to be "just." It is not a judicial system, it is an educational system and one that is suffering a crisis. No one is "entitled" to some sort of idealized "college experience." People are entitled not to be raped.
posted by corb at 12:17 PM on February 23, 2015 [3 favorites]


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