Panic Attack

by Robby Soave

  Weeks later, Kipnis was sensibly found not responsible. But consider the message sent to those who would criticize the excesses of modern feminism: question us, and face the consequences—the consequences being possible punishment, censorship, and loss of employment.

  Kipnis’s ordeal is an eye-popping example of activists using the Title IX process to harm a critic, though by no means the only one. In my years writing about campus issues, I’ve seen Title IX cited over and over again as the pretext for launching an investigation, or muzzling a student or faculty member over an act of clearly protected expression. Criticizing Title IX is itself a possible violation of Title IX, as Kipnis discovered: her essay about the deficiencies of a Title IX proceeding involving a colleague became the grounds for a new investigation with Kipnis as its target. In this sense, the new interpretation of Title IX is a modern example of Catch-22, the fictitious World War II–era edict from Joseph Heller’s book of the same name. (From the book: “‘Didn’t they show it to you?’ Yossarian demanded, stamping about in anger and distress. ‘Didn’t you even make them read it?’ ‘They don’t have to show us Catch-22,’ the old woman answered. ‘The law says they don’t have to.’ ‘What law says they don’t have to?’ ‘Catch-22.’”)

  In the more than two years since the investigation, Kipnis has become a leading critic of this strained application of Title IX, and even published a book on the subject, Unwanted Advances: Sexual Paranoia Comes to Campus. But not everyone targeted by a Title IX investigation possesses the ability to capitalize on the ordeal and make something positive out of it. Many innocent students—particularly those who are subjected to inquisitions based on alleged sexual violence—suffered steep penalties. Consider the case of Grant Neal, a former Colorado State University–Pueblo student. Like Boermeester, Neal was a football player; unlike Boermeester, he was black. Neal’s girlfriend, a student and athletic trainer known as “Jane Doe” in the eventual lawsuit, was a white woman.

  Neal and Doe kept their blossoming romance a secret, since sexual relationships between athletes and trainers were frowned upon at Colorado State, though by no means formally outlawed. But a friend of Doe’s suspected something and confronted Doe. For reasons unknown, this friend then contacted the athletic department, concerned that Neal had hurt Doe. When Doe found out, she texted Neal, “One of the other Athletic Training students screwed me over!… She went behind my back and told my AT advisor stuff that wasn’t true!!! I’m trying so hard to fix it all.”18

  Later, Doe told an athletic coordinator, “I’m fine and I wasn’t raped.”

  One might have expected that to be the end of it, but no: athletic department heads informed Doe that they were required under federal law to report her alleged mistreatment to the proper authorities. This federal law was Title IX.

  And so, despite the alleged victim’s protestations that she wasn’t actually a victim of anything, the university’s Title IX office launched a sexual misconduct investigation against Neal. While the investigation was under way, officials banned Neal and Doe from seeing each other—a no-contact order that Doe willingly chose to violate, since she did not view Neal as a threat to her safety. Doe sent him messages using the social media app Snapchat; concerned that he could get in even more trouble because of this, Neal approached Roosevelt Wilson, the Title IX officer. Wilson instructed Neal to open the snaps, screenshot them, and send them to Wilson. Neal did this, only to later receive a message from Wilson warning him that by opening the snaps—in order to screenshot them, so as to comply with Wilson’s instructions—Neal “could potentially be in complication with your no contact order.”

  When I interviewed Neal about his ordeal in February 2017 (the investigation took place in the fall of 2015), he told me that had been the moment he first realized the situation was out of his control.

  Neal would never appear before a panel charged with determining his guilt or innocence; CSU-Pueblo practiced something called the “single-investigator model,” which invests just one administrator with the powers of an entire panel. Under a single-investigator model, a lone Title IX official investigates the allegations of sexual misconduct, decides which witnesses are relevant to the case, makes notes about the evidence he gathers, and produces a report containing a recommendation. This report is then handed off to another administrator, who often endorses its conclusion, whatever that may be.

  This model will strike many readers as brazenly unfair—critics have characterized it as essentially designating one person to play detective, prosecutor, judge, jury, and executioner—but it is nevertheless the model recommended by the White House Task Force to Protect Students from Sexual Assault, established in 2014.19

  As the sole investigator, it was Wilson’s job—and his alone—to investigate Neal. That meant that no one but Wilson could decide which people to interview and what evidence was relevant to the case.

  “He refused to let me see any statements or evidence against me,” Neal told me. “All the evidence I brought to him was … he said he would—quote, unquote—he said he would deem things as evidence if he would like to.”

  Wilson eventually submitted his report to Jennifer DeLuna, director of diversity and inclusion at CSU-Pueblo, in December 2015. DeLuna gave Neal twenty-four hours to appear before her. Neal was permitted to bring legal counsel, but his lawyer was not allowed to speak to Neal during the meeting.

  “The legal counsel was there as mental and emotional support,” Neal told me. “I was allowed to review the documents and investigation against me, but I was not allowed to leave the room. I was not allowed to get up to use the restroom. I was not allowed to take pictures or copies.”

  Wilson’s report consisted of his impressions of conversations with the witnesses he had selected to be interviewed. His conversation with Doe, for instance, was not transcribed directly into the report. Neal was effectively denied any means of proving his innocence—DeLuna could do nothing but rely on the evidence deemed fit for her perusal. Neal was found responsible for sexual misconduct based on a preponderance of the evidence made available to DeLuna, and suspended until Doe’s graduation.

  “It was basically an expulsion,” said Neal. “I am not able to transfer to any other university, although my academic and athletic status would allow me to transfer to almost any major university in the nation. I applied to five different universities and all the denials were basically worded in the same way: ‘You’re a great student, we’d love to have you on campus. You seem to have the athletic ability to be a part of our program as well. But based on the findings of CSU-Pueblo, we can’t have you on our campus.’”

  It took years for Neal to achieve a measure of justice: in July 2017, his attorney, Miltenberg, announced that Neal had settled with the university. The terms of the deal remain private—it is unknown whether the financial settlement was sizable enough to repair Neal’s formerly bright future, or make up for the years he spent living under a cloud of suspicion. As part of the settlement, CSU-Pueblo admitted no wrongdoing in the course of its Title IX investigation.

  Who are these administrators situated within the vast bureaucracy that handles sexual misconduct on campus? Many were hired or retrained over the last decade to bring their universities into compliance with Title IX. Some are academics who moonlight on misconduct adjudication panels (in cases where panels are used in place of the single-investigator model). According to attorneys who have been involved in campus sexual assault proceedings, these people are disproportionately drawn from certain academic fields, including gender studies, that might make them more likely to inherently believe female accusers.

  Justin Dillon, an attorney who represents accused students in sexual misconduct cases, gave me an example. He said he once had a case at Oberlin College where a student found responsible for sexual misconduct had appealed the decision; the appeal went to a single appeals officer, who ruled against the student. But this appeals officer had once retweeted the sentiment “To survivors everywhere: we belie
ve you” from the group End Rape on Campus. For Dillon this was a clear example of bias: the appeals officer had expressed an enthusiasm for automatically believing sexual assault claims.

  Dillon attempted to make Oberlin aware of its appeals officer’s bias, but to no avail. “We notified Oberlin of that and they said we don’t think that shows that he would be biased in this case,” said Dillon. “Which is kind of like saying no one can prove that David Duke is biased against any individual black person.”

  Over the course of half a decade of robust Title IX enforcement, it became more and more common for campus sexual misconduct disputes to end with lawsuits. Alleged victims whose accusations were discounted could contend that the school had broken federal law, creating a sexually hostile and discriminatory environment. And alleged perpetrators—the truly guilty and the truly innocent alike—could point to a long list of civil liberties to which they should have been entitled but were nevertheless denied under the “Dear Colleague” understanding of Title IX. Some defenders of the rights of the accused, including FIRE, have even claimed that OCR violated the Administrative Procedure Act, a statute that requires federal agencies to publicize proposed new rules and subject them to scrutiny before enacting them. (OCR countered that the “Dear Colleague” letter was not a new rule but rather a clarification of an existing rule.)

  Endless lawsuits work to the advantage of no one—except lawyers—and a sense took hold among many skeptics that the Obama-era Title IX approach just didn’t work. In 2016, President-elect Trump—empowered to counteract much of the Obama agenda—chose Betsy DeVos to serve as secretary of education. DeVos, an outsider just like her boss, quickly began soliciting input on what, if anything, should be done about perceived Title IX overreach. In the fall of 2017, she formally rescinded the “Dear Colleague” letter and promised to de-weaponize Title IX.20

  But a withdrawal of the “Dear Colleague” letter has not meant that colleges were required to get serious about due process, or return to an earlier understanding of sexual harassment.

  “Most universities have essentially doubled down or reaffirmed their commitment to the pre-DeVos policies,” Miltenberg told me. “Which is interesting because you would have thought that, or I think we would have liked to have seen that, the withdrawal of the ‘Dear Colleague’ letter would have led to, if nothing else, perhaps a more transparent and equitable procedure. But in my view that’s very much not what’s happened. Very much the opposite.”

  In fact, nearly all college presidents who reacted to the news publicly signaled opposition to DeVos’s changes, and vowed to continue robustly investigating sexual misconduct.

  Why? One reason is probably the ongoing pressure from the newly empowered campus activists and their network of allies. Ms., the magazine that had continued to promote the Satanic child abuse conspiracy long past its expiration date, wrote in the wake of DeVos’s new Title IX guidance that “DeVos’ remarks echo the talking points of men on the so-called alt-right … who raise the specter of widespread false rape allegations in order to deny survivors justice and uphold a rape culture.”21 Ms. went on to highlight the important work activists were doing to fight DeVos tooth and nail. The Feminist Majority Foundation accused DeVos of sweeping rape under the rug.22 When DeVos spoke at Harvard University some weeks after her Title IX announcement, student activists in the crowd held up signs accusing her of being a white supremacist—an ironic charge, given that more robust due process protection in campus sexual misconduct cases would probably help students of color, who are likely disproportionately represented among the accused.

  “I think that this activism has become an intimidation, a tactic of terror, if you will, on many campuses that leaves administrators very frightened,” said Miltenberg.

  At the end of 2018, DeVos took firmer steps to rein in Title IX, releasing a list of proposed reforms that would eliminate the single-investigator model, mandate some form of cross-examination, and limit actionable sexual harassment to behavior that is severe, pervasive, and offensive to a reasonable person. These are very sensible changes, from a due process perspective, and could re-balance the scales of justice for those accused of wrongdoing on college campuses. Expect fourth-wave feminists to fight the changes every step of the way.

  Indeed, campus sexual misconduct exposes another weakness of intersectionality: competing interests among the marginalized. Several critics of modern Title IX enforcement—including the Atlantic’s Yoffe and Harvard University law professors Janet Halley and Jeannie Suk—have noted that immigrant students and students of color seem to be accused of sexual misconduct at stunningly high rates. Hard statistics are difficult to come by, but a survey of one institution, Colgate University, found that 50 percent of students accused of sexual assault in the 2013–14 school year were black men—even though they represented just 4 percent of the student population.23 Anecdotally, I can say that Title IX disputes often involve a white female accuser and a black male.

  The history of racism in the United States is a history in which white women falsely accused black men of sexual impropriety. Consider Emmett Till, a fourteen-year-old black male who was lynched by southern racists in 1955 after a white woman accused him of sexual misconduct for whistling at her. Till’s murder helped to galvanize the civil rights movement; his casket is currently on display at the National Museum of African American History and Culture in Washington, D.C.

  What’s happening to men of color on campus is of course nowhere near as horrific. Even so, in today’s climate it would be very problematic to point out the legacy of white women wrongly accusing black men of sexual crimes. Gender is a matrix of oppression, as is race. But intersectionality offers no guidance for adjudicating competing claims of identity-based oppression, nor does it recognize that there are circumstances where marginalized status is an advantage (female defendants are generally treated more leniently than male defendants, for instance). When it comes to campus Title IX trials, gender and race are in tension: being black is a handicap, as it is in other matters concerning the criminal justice system, but being a woman is not.

  Statistical Violence and Serial Predators

  If Title IX was fourth-wave feminism’s sword, and “believe the victims” its clarion call, the statistics of sexual assault served as the movement’s codex. Zillennial gender activism is grounded in three scientific claims, and every intersectional feminist who joined the movement in college knows them by the numbers: one in five (or one in four), 2–8 percent (sometimes 2–10 percent), and 90 percent. These numbers correspond with statistical findings relating to sexual violence and are beyond reproach, according to the activists. The numbers were run, and run, and run again, and there is no longer any doubt.

  One in five women will be sexually assaulted while in college. It’s something every left-of-center entity believes, from Alyssa Milano to NARAL.24 Op-eds in student newspapers that take the university administration to task for failing its Title IX obligation inevitably reference the one-in-five statistic. The Obama White House’s Task Force to Protect Students from Sexual Assault even mentioned the statistic in its thirty-four-page report issued on January 22, 2014. President Obama and Vice President Joe Biden both said it in speeches.25

  “It’s a significant fact that one in five women who attends college can expect to experience sexual violence,” writer Julie Zeilinger told me.

  Some accept the statistic because it jives with personal experience. “I believe in the one in five statistic wholeheartedly because I am a survivor and I remember how many of my friends disclosed that it had happened to them too,” Laura Dunn, an attorney and executive director of sexual assault prevention at SurvJustice, told Inside Higher Ed. “Most women don’t doubt this statistic because we are aware in our conversations how common sexual violence is in our experience.”26

  But the statistic is based on much more than mere conjecture. Its originator was Mary Koss, a professor of public health at the University of Arizona, who in 1987 first p
roduced the research that suggested nearly a quarter of college students had experienced rape. Subsequent studies, including a 2015 poll of college students conducted by the Washington Post and the Kaiser Foundation, produced a similar number.27

  Disputes over methodology have prompted pushback against the one-in-five statistic among the broader public. In surveys, many women describe having survived harrowing ordeals that meet the interviewer’s definition of sexual assault—and thus count toward the total—even though the women themselves do not identify as rape victims. The Post/Kaiser survey defined sexual assault as “forced touching of a sexual nature, oral sex, vaginal sexual intercourse, anal sex and sexual penetration with a finger or object,” but only 9 percent of women said they were assaulted in this manner.28 More women, 14 percent, said they had experienced “unwanted sexual contact” while they were drunk, drugged, or asleep. Being drunkenly groped at a party is indeed bad, but does it really belong in the same category as forcible rape? The one-in-five statistic is composed of a whole lot of problematic sexual behavior, but not all of it was considered sexual assault by the people to whom it happened.

  The second statistic has received less scrutiny, even though it’s equally important to the anti-rape movement: only 2 to 8 percent of rape reports are false. This statistic provides intellectual support for the believe-the-victims mantra: since victims are rarely lying, the public should follow the strategy of automatically believing claims. There just aren’t enough liars to make disbelief or caution a reasonable strategy. As Hillary Clinton put it, “Every survivor of sexual assault deserves to be heard, believed, and supported.”29 (In practice, of course, Clinton has made exceptions to this policy in cases where the accused was her husband.)