Lack of Campus Due Process Hurts Professors and Black Students

The Atlantic’s Emily Yoffe once referred to the “rich, white fraternity athlete” as the “archetypal image of the campus rapist.” Some suppose these are the only people impacted by issues of due process under Title IX. A study recently sent to the Department of Education’s Office for Civil Rights demonstrates the error of that assumption. Signed by over 100 lawyers, academics and other professionals, it reveals the broader impact of colleges’ failures to observe due process.

The problem’s most ironic impact is on black men. Enemies of due process are often people who profess commitment to actively rooting out racism’s real and imagined remnants. They claim so-called “white privilege,” “male privilege” and “class privilege” go hand in hand. Their activism is intended to thwart “dominant white male power.” In reality black males constitute 6% of college students but over a quarter of those accused of rape.

A study by Title IX for All is demonstrative. It analyzed 645 lawsuits filed by students claiming they were deprived of due process. Race was unrecorded for 70% of them. A third of the remainder—10.39% of the total—were black. In the 2013-2014 academic year half the sexual assault accusations at Colgate University were made against black students. 4% of students were black. According to Emily Yoffe, members of the Office for Civil Rights consider race “an issue in Title IX cases.” Harvard’s Jeannie Suk Gersen has written that “Administrators and faculty who routinely work on sexual-misconduct cases...tell me that most of the complaints they see are against minorities.” Examples can be multiplied. And nearly half of college rape accusations lack a foundation.

The racial “income gap” impacts Title IX cases more than criminal ones. Criminal defendants have the right to an attorney. Public defenders are not dunces. Standards of evidence are strict. Guilt must be proven beyond a reasonable doubt. Respondents in Title IX cases are often prevented from mounting a meaningful defense. Lawsuits are their only recourse against biased college administrations. Costs are prohibitive for low income students unless a lawyer is willing to work for a contingency fee or pro bono.

Another vulnerable group are professors. Any behavior deemed “offensive” by a student can trigger investigation and punishment. Perhaps the most absurd case concerns Northwestern University’s Laura Kipnis. The professor published an essay claiming certain sexual conduct policies were “paranoid.” One student responded by filing a Title IX complaint. The alleged offense? Kipnis’s article had a "chilling effect" on students' ability to report sexual misconduct. Professor Reginald Robinson teaches at Howard University’s law school. He once tested students on a hypothetical case about a spa customer dissatisfied with a “Brazilian wax.” The question made reference to genitals. A student claimed this was sexual harassment. The university upheld the claim. Plymouth State University punished three professors who acted as character witnesses for a former student accused of a sex crime. Dr. Nancy Strapko was fired—then paid $350,000 to avoid a lawsuit. Michael Fischler and Gary Goodnough were required to undergo Title IX sexual harassment training.

Other cases are dishonestly manipulative. In one of these a female student first demanded Professor David Samuel Levinson raise her grade. When he refused she threatened to file a sexual harassment claim. Levinson is gay. Another started with a female graduate student alleging non-sexual hostility by Cornell physicist Mukund Vengalattore. Her fellow students didn’t just side with the professor. They complained to the university about her behavior. Only after Vengalattore later obtained tenure did the student claim he had sexually assaulted her—allegedly four years earlier. There was even a case of a professor anonymously filing false sexual assault allegations against another. The reason? To disqualify a rival applicant for a job. Depriving professors of due process can undermine the integrity of the entire university system.

Different approaches are required for addressing these issues.

The racial matter is complex. To understand it we must: 1) Record the race of accuser and accused in all cases. 2) Assess whether false accusations based in misunderstandings are more common in interracial cases. 3) Assess whether maliciously false accusations are more common in interracial cases. Until then we shouldn’t replace a “sexual assault witch hunt” with a “racism witch hunt.”

Title IX regulations must be specific about what does not constitute “sexual harassment” or “creating a hostile environment.” Addressing sexual matters in an academic manner must be explicitly excluded. Whether students are made uncomfortable by this must be explicitly declared irrelevant. Disagreement and opposition must be explicitly distinguished from “hostility.” Whether students are “intimidated” by disagreement and opposition must also be explicitly declared irrelevant. Continued abuse of such terms may necessitate removing the relevant prohibitions.

Student accusations against professors must be restricted by something comparable to a statute of limitations. I would suggest requiring them to be made before grades are posted for the semester during which offenses allegedly occurred.
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