Wednesday, April 17, 2013

Today's Lesson: Kafka, Feminism and Due Process In University Discipline

Apparently, the plan was to make sure no one could ever challenge an accusation of sexual misconduct in college. Lest there be any question, this was not because of some intrinsic hatred of due process, confrontation, all those nasty technicalities that criminal defense lawyers hurl about in criminal courtrooms.

This was about promoting the feminist agenda that no woman who alleged that she had been sexually abused, no matter what evidence she had or existed to the contrary, should ever, ever, lose.  This isn't a contrarian view, or a secret scheme, but as open and apparent as could be.  It affected the serious and foolish alike.  It was a policy choice. They would rather ten innocent male students be expelled than one false accusation of sexual misconduct fail.

And it not only seemed like a good idea at the time, but was bolstered by legal scholars who ridiculed the notion that the rights afforded to criminal defendants, due process, reliable evidence, confrontation, double jeopardy, have any place in university discipline when a claim of sexual abuse was on the table.  Anyone who thought the accused deserved half a chance was a misogynist, which is one step above a rapist and deserving of whatever pain was inflicted anyway.

In the Wall Street Journal, lawyer, feminist and mother Judith Grossman tells of her son being the accused.  Key to her commentary is that the young man with his butt in the hot seat was hers.  Not mine. Not yours, but hers. Nothing clarifies issues as well as being personally touched by them, and nothing touches a mother more than her child being in the line of fire.
Until a month ago, I would have expressed unqualified support for Title IX and for the Violence Against Women Act.

But that was before my son, a senior at a small liberal-arts college in New England, was charged—by an ex-girlfriend—with alleged acts of "nonconsensual sex" that supposedly occurred during the course of their relationship a few years earlier.

What followed was a nightmare—a fall through Alice's looking-glass into a world that I could not possibly have believed existed, least of all behind the ivy-covered walls thought to protect an ostensible dedication to enlightenment and intellectual betterment.

To the extent we blink so that we don't need to see the ugly details of larger concepts we adore, like Title IX and the Violence Against Women Act, the people forced into battle have no choice but to look them square in the eye. 

I recall a client, whose politics were very Republic, very conservative, charged with a very serious crime back when Dukakis was running against the Elder Bush, asking me why the government wasn't offering him a slap on the wrist because of "revolving door justice," harkening the pervasive Willie Horton advertisement of the time.  I just smiled as he realized that he might have been a little too blinded by his politics, and the TV advertising was not a sound basis for his expectations of the criminal justice system.  I enjoyed the irony, though I knew how painful his epiphany would be.

So too was Grossman's epiphany.

There was no preliminary inquiry on the part of anyone at the school into these accusations about behavior alleged to have taken place a few years earlier, no consideration of the possibility that jealousy or revenge might be motivating a spurned young ex-lover to lash out. Worst of all, my son would not be afforded a presumption of innocence.

In fact, Title IX, that so-called guarantor of equality between the sexes on college campuses, and as applied by a recent directive from the Department of Education's Office for Civil Rights, has obliterated the presumption of innocence that is so foundational to our traditions of justice.
Grossman goes on, in the fashion that happens regularly by the accused and their family, to parse the minutiae of process, excruciating detail by detail, astounded and outraged by the rights not afforded, the ones we spouse in our "tradition of justice" in the "real" legal system.  It's almost charming in its naiveté.

The evisceration of rights always comes in lockstep with high ideals and good intentions.  Do it for the women. Do it for the children. No one should ever have to suffer the harm, the pain, the indignity of being the victim of whatever flavor of offense we're striving to eliminate today.  Grossman was all for it, until she wasn't.

But she better hope that her son is never the target of an accusation in a real courtroom.  Sure, all those rights she touts are chiseled into the courthouse lintels and appear in the first few paragraphs of legal opinions that go on to explain why they don't apply in this case.  We have a tradition of reciting platitudes of justice, and a tradition of coming up with really good reasons why they don't apply.

I fear that in the current climate the goal of "women's rights," with the compliance of politically motivated government policy and the tacit complicity of college administrators, runs the risk of grounding our most cherished institutions in a veritable snake pit of injustice—not unlike the very injustices the movement itself has for so long sought to correct. Unbridled feminist orthodoxy is no more the answer than are attitudes and policies that victimize the victim.
Or terrorism. Or the war against drugs. As sympathetic as we may be with the plight of Judith Grossman's son, her vision is still limited to that which touched her life.  The evil she sees is "unbridled feminist orthodoxy," because her son was charged with sexual misconduct.  But it's no more evil than any agenda stoked by the "current climate" of fear.

I hope she is never forced to come to the larger epiphany because her son has been accused of some other offense against some other orthodoxy.  This may be a huge step forward for Grossman, but she still has a very long trip ahead of her before she realizes what the "tradition of justice" really means.

H/T Walter Olson at Overlawyered





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