Panic Attack

by Robby Soave

  Around the same time that third-wave feminism was transitioning into the more energized, rape-culture-fighting fourth-wave feminism of the present day, activists were working tirelessly to broaden the definition of rape. “No means no” gave way to “Yes means yes,” the slogan for the affirmative consent movement, which held that it was not enough for men to back off when they heard the word “no”—they should never even move forward in the first place, the new thinking goes, unless they hear the word “yes.”

  “More and more sexual acts that previous generations might have filed under ‘Terrible College Experience’ are being reclassified as offenses that can earn banishment from the Ivory Tower,” wrote the journalist Vanessa Grigoriadis in Blurred Lines, her 2017 book about the millennial generation’s changing norms of sex and consent. “The legions of young men and women who have and will come forward to speak on this topic are caught up in one of the greatest cultural shifts to happen on American campuses in decades: a reframing of sexual dynamics.”

  Sulkowicz’s case is an imperfect representation of the new battles over consent, but it was the one that caught the most media attention, generating an abundance of activist activity. After she became a national heroine for the anti-rape cause, feminists at countless campuses carried mattresses to protests in a show of solidarity. Her crusade even served her own academic purposes: Columbia’s School of the Arts permitted her to spin the mattress protest as her senior thesis. In carrying her mattress with her wherever she went on campus, Sulkowicz was not just striking a blow against rape culture; she was also completing her degree. (It was this action that later led Nungesser to file suit against Columbia for, in his view, sanctioning Sulkowicz’s campaign of harassment, despite the university’s finding of his innocence. Columbia settled Nungesser’s suit for undisclosed terms.)

  Many of the activists who were most passionate about destroying this rape culture were themselves alleged victims of sexual assault, though they preferred the term “survivor,” which gave them a feeling of greater agency. The stakes were personal. They had the harrowing stories: Mattress Girl, their own ordeals, and countless others. They had the statistics. Increasingly, they had the attention of the media and the public—even the Obama White House vowed to do something about campus sexual assault. And perhaps most important, they had each other: the power of the internet had made it much easier for activists at Columbia to compare notes with activists at the University of North Carolina, to identify commonalities, discuss tactics, and even catch each other up on the latest lingo.

  “Memes, like Sulkowicz’s mattress, viral survivors’ tales, and the brilliant and merciless tactics of young activists started to turn a tide that had, for decades, flowed only one way,” wrote Grigoriadis in her book. “The power of web-based sharing met the power of belief, creating an epistemic certainty among girls about the frequency of assault.”

  Epistemic certainty creates fertile ground for change, but not always fertile ground for self-reflection. The campus revolution to combat sexual assault has emboldened a lot of young women, but it’s also had dire consequences for certain liberal values—free expression and due process chief among them. Like so many revolutionaries, the activists occasionally overreached. In the specific case of recent feminist activism, the government—unbeknownst to most of the public—provided the activists with a powerful weapon: a little-known, seemingly innocuous federal statute called Title IX.

  Title IX has been so essential to the fourth-wave feminist cause that Annie Clark and Andrea Pino, two purported survivors of sexual assault and activist crusaders in the vein of Mattress Girl, got the Roman numeral “IX” tattooed on their ankles.

  No One Expects the Title IX Inquisition

  In the fall of 2016, a University of Tennessee student named Keaton Wahlbon had to take a test in Professor Bill Deane’s earth science class. One of the questions—a joke question—asked, “What is your lab instructor’s name? If you don’t remember make something good up.”10

  Wahlbon did not remember his female lab instructor’s name, as it turned out, so he followed the instructions and wrote down the first random woman’s name that popped into his head: Sarah Jackson.

  Sounds like a common name, no? It is. It’s also the name of a Canadian lingerie model (something neither Wahlbon nor the author of this book was aware of).

  “I had no idea it was the name of a nude model,” Wahlbon told me when I interviewed him for Reason.

  When Wahlbon got his test back, he had received a grade of zero. The grader had written “inappropriate” next to the Sarah Jackson response.

  Wahlbon emailed the professor, insisting that he had no idea “Sarah Jackson” was a nude model. Deane wrote back: “I have no way of determining your intention. I can only consider the result. The result is that you gave the name of Sarah Jackson, who is a lingerie and nude model. That result meets with Title IX definition of sexual harassment. The grade of zero stands and will not be changed.”

  More than a year earlier, in January 2015, administrators at the City University of New York sent an email to faculty instructing them to cease using gendered salutations in their written correspondence: “Mrs.,” “Mr.,” and the like. When asked why such instructions were necessary, an administrator told the Wall Street Journal that the school was only trying to meet its Title IX obligation.11

  Then there was Matt Boermeester, the University of Southern California (USC) football player expelled for alleged sexual misconduct. The striking thing about Boermeester’s case was that his supposed victim—his girlfriend, Zoe Katz—never made any accusations against him. Instead, a neighbor who saw the couple and assumed they were fighting told Boermeester’s coach, who then informed the university, consistent with Title IX requirements. The university initiated an investigation, but when it asked Katz about what had happened, she told the investigators in no uncertain terms, “The report is false.” The investigators were unmoved by Katz’s denials, and Boermeester was expelled anyway.

  Boermeester took the matter to court. His expulsion was stayed, but a judge ruled in September 2017 that he couldn’t return to campus until the broader matter was decided. This did not please university officials; a lawyer for USC told the court she was worried “that the stay would keep future victims of sexual assault or harassment from coming forward at USC and send the message there was something ‘erroneous’ about the investigation,” according to the Los Angeles Times.12 For the university, the sanctity of the Title IX process was what mattered most.

  You’re probably wondering: What on earth is Title IX, and why did this law become both an indispensable tool for gender activists and a source of grave concern for civil libertarians?

  Title IX is part of the Education Amendments of 1972, the federal law that stipulates the conditions under which educational institutions can receive funding from the government. Title IX itself is just one sentence long, and states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

  Legislators who crafted the statute intended to prevent schools from discriminating against women’s educational and extracurricular activities. In subsequent decades, Title IX was used to ensure that educational institutions were funding clubs and sports teams for women. Schools could not prevent someone from enrolling in a class or using a certain facility because of that person’s biological sex. Exceptions were made—for example, schools didn’t have to make their locker rooms co-ed—but they did have to provide locker rooms to female students if enough of them wanted to start a basketball team. More recently, the Obama administration determined that Title IX’s anti-discrimination provision also applied to gender identity, casting doubt on whether a publicly funded school could legally refuse a biologically male student who identifies as female from using the girls’ locker room. (This is dealt with in Chapter Five.)
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  Title IX enforcement falls under the purview of the Office for Civil Rights (OCR), an agency that exists within the Education Department. It’s OCR’s job to determine whether primary and secondary schools are meeting their Title IX obligations; the agency informs an institution that it needs to make certain changes to be in compliance, the institution reforms itself, and life goes on. Again, the statute OCR is responsible for interpreting and enforcing is just one sentence long.

  On April 4, 2011, everything changed. That’s the day OCR released its infamous “Dear Colleague” letter.13 The letter was sent to the University of Montana but was intended as a blueprint for all universities that receive public funds. In the letter, OCR maintained that sexual misconduct, harassment, and violence were forms of sex-based discrimination and thus outlawed under Title IX. “All such acts of sexual violence are forms of sexual harassment covered under Title IX,” wrote Russlynn Ali, who was then assistant secretary of OCR, in the letter. In order to continue receiving millions of dollars from the federal government, schools needed to make a concerted effort to root out sexual harassment and rape on campus.

  If OCR’s letter had merely required colleges and universities to involve themselves in the business of policing rape, the effects would not have been particularly large—colleges and universities already had in place a wide variety of strategies for reducing sexual violence on campus. But the “Dear Colleague” letter also sought to standardize these practices under the auspices of a forty-year-old federal statute.

  OCR insisted upon three key changes. First, university administrators would be required to use a preponderance-of-the-evidence standard when determining whether sexual misconduct had taken place. This standard—essentially 50 percent certainty of a wrongdoing plus a feather, or an abstract belief that it is more likely than not misconduct took place—is easier for accusers to meet than the beyond-a-reasonable-doubt standard, which is required in criminal trials. Before OCR released its 2011 guidance, some colleges and universities employed a clear-and-convincing-evidence standard, which holds that a level of about 75 percent certainty is needed for a finding of responsibility. Overnight, this became forbidden. In September 2014, the last holdout in the country, Princeton University, lowered its standard of proof from clear-and-convincing to preponderance-of-the-evidence.14

  Supporters of the change note that the lower standard of proof is used in civil procedures, and college sexual misconduct tribunals are more akin to civil than criminal procedures, for one big reason: Princeton doesn’t have the power to send anybody to jail. Institutions of higher education do have the power, however, to effectively ruin the lives of students found responsible for sexual misconduct: a guilty verdict could mean expulsion, thousands of dollars lost in tuition, and social pariah status.

  Of course, it’s still possible for administrative boards to make correct determinations, despite a lower standard of proof. OCR’s second new requirement, however, further undercut legal safeguards for the accused.

  “OCR also recommends that schools provide an appeals process,” the letter stated. “If a school provides for appeal of the findings or remedy, it must do so for both parties.”

  This was no less than an enshrinement of what’s called double jeopardy in the criminal justice system. Even if a student was found innocent of sexual misconduct, the complainant—OCR’s term for the accuser—could appeal the decision. On appeal, administrators would again be using the lower evidentiary standard.

  Finally, the “Dear Colleague” letter explicitly discouraged universities from allowing the complainant and the respondent (OCR’s term for the accused) to cross-examine each other. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment,” the letter stated.

  This meant that if a student had accused another student of sexual misconduct, the accused would not enjoy the ironclad right to confront the accuser during the hearing. But cross-examination is a fundamental component of due process, and one of the best tools a wrongly accused person has of establishing innocence. With the release of a nineteen-page document, OCR had gutted it.

  “What you ended up having and still have today are policies and procedures that I think are incredibly unfair and inequitable toward the accused,” Andrew Miltenberg, an attorney who has represented dozens of accused students in campus sexual misconduct cases, told me in an interview. “You have staff members and administrators and investigators that have been hired during, trained during, and put in place to carry out policies that arose and were written during this time immediately following the 2011 ‘Dear Colleague’ letter, which again meant that the view was toward very aggressive prosecution, for lack of a better word, of the accused when it comes to campus sexual assault.”

  But due process was not the only liberal principle under threat by the “Dear Colleague” letter; OCR’s new guidance also raised important free speech concerns.

  In its previous correspondence with colleges, OCR had typically cited the Supreme Court’s definition of sexual harassment. According to the 1999 decision in Davis v. Monroe County Board of Education, the Court had held that offensive behavior could not be considered sexual harassment unless it was “so severe, pervasive, and objectively offensive” that it “undermines and detracts from the victims’ educational experience” in a manner that fundamentally denies the victim a right to an equal education. Otherwise, said behavior would be considered free expression under the First Amendment.

  “Severe, pervasive, and objectively offensive” is a strict standard. But OCR made no mention of it in its instruction to universities to get serious about sexual harassment. And in subsequent guidance the agency continued to send mixed messages about what kind of conduct amounted to sexual harassment and what kind of conduct was protected speech. For instance, in a letter to Frostburg State University, OCR informed the institution that its sexual harassment policy was in violation of Title IX.15 The offending policy stated that “in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail. The standard shall be the perspective of a reasonable person within the campus community.” This phrasing—using “common sense” and a “reasonable person” test—was a problem for OCR.

  It’s no wonder that OCR’s dictates raised red flags with civil libertarians. The Foundation for Individual Rights in Education was particularly concerned. “FIRE worries that schools seeking to comply with OCR’s increased emphasis on sexual harassment education and prevention will fail to promulgate and disseminate sexual harassment policies that provide sufficient protection for student speech,” wrote FIRE’s attorneys in a letter to OCR.

  FIRE was right to worry. In the years since the “Dear Colleague” letter, campus after campus has hired a massive bureaucracy of coordinators, investigators, and compliance officers to ensure that the Obama administration’s quixotic interpretation of a one-sentence statute is being observed. OCR’s standard operating procedure has been to announce an investigation into a university, and then close the investigation by offering the university a chance to adopt all of the agency’s recommendations and keep its federal funding.

  It did not take long for activists to grasp the punitive powers of Title IX. The raw numbers bear this out: in 2005, 5,335 complaints were filed with the office. Ten years later, 10,392 complaints were filed. In 2005, just 11 of 5,000 complaints specifically mentioned sexual violence (rather than harassment or nonviolent discrimination). By 2015, there were 164 such complaints.16

  Most of the broader public has probably never heard of Title IX. But it is central to activist life on campuses. In 2013, two survivors of campus sexual assault cofounded an anti-rape advocacy group; they named it Know Your IX. Their goal was to spread awareness of a powerful weapon in the feminist tool kit.

  One of the best examples of activists using the new understanding of Title IX to
wreak havoc was the inquisition directed at Northwestern University film studies professor Laura Kipnis.17 In February 2015, Kipnis wrote an essay for the Chronicle Review about the new norms of sex and consent on campus. Kipnis contended that millennial feminism was at times worrisomely Victorian, and wrote fondly of her own time as a student, when it was not uncommon for students and professors to engage in sexual relationships. Kipnis also wrote in measured defense of a Northwestern professor, Peter Ludlow, who she believed was being railroaded by the administration. (Ludlow was accused of sexual misconduct and later resigned after Northwestern found him responsible for harassment.)

  To say that Kipnis’s essay enraged Northwestern’s students would be an understatement. First, they protested her—as was their right. They also started a petition asking the university to condemn Kipnis’s “toxic ideas … because they have no place here.” Finally, two students filed formal Title IX complaints against her. Central to these complaints was the idea that Kipnis, in writing things that were critical of the young woman who had accused Ludlow of mistreating her, had “retaliated” against her. And Title IX prohibits retaliation, according to OCR.

  “Both complainants were graduate students,” wrote Kipnis in a follow-up article. “One turned out to have nothing whatsoever to do with the essay. She was bringing charges on behalf of the university community as well as on behalf of two students I’d mentioned—not by name—because the essay had a ‘chilling effect’ on students’ ability to report sexual misconduct.”

  What Kipnis has called “my Title IX inquisition”—a reference to the investigations of heretics undertaken by the medieval Roman Catholic church—involved Northwestern flying in a team of lawyers to investigate her alleged wrongdoing. Kipnis herself was not permitted to have an attorney; instead, she was allowed a support person. This person’s activism on her behalf eventually generated Title IX accusations as well, and the supporter was removed from the proceedings.