Oct 242014

Pro Due Process Does Not Equate to Pro Rape

Duff McDonald
October 24, 2014

Ask litigator Andrew Miltenberg how he decides whether or not to take on the idiosyncratic clients that fall outside his bread-and-butter business litigation practice, and he’ll give you a couple of answers. First, he’ll point you toward Pastor Martin Niemoller’s famous condemnation of German intellectuals for failing to speak out against Nazism when they still had a chance. (“First they came for the Socialists, and I did not speak out—because I was not a Socialist …”)

Second, he’ll reference his own stature—at just 5-foot-6, he’s always been one of the shorter guys in the room. The two come together neatly in what might be termed a personal-political symbiosis. “From an early age,” he says, “I decided that I was going to stand up and be counted, and that I was going to look out for the little guy.”

That’s how, in 1997, he came to represent artists suing New York City over the right to sell their work on public sidewalks. (They won.) And how, in 1998, he represented a landlord who was refusing to allow Madonna pal Ingrid Casares and reputed mob associate Chris Paciello to assume a lease at 16 West 22nd Street so they could open an NYC outpost of their Miami club, Liquid. (The landlord prevailed.) And how, in 2002, he represented parents of students at Battery Park City’s P.S. 89 outraged at the Board of Ed’s plan to reopen the school just five months after 9/11 in light of potential health risks. (The two sides compromised.) And how, in 2014, he is emerging as the go-to lawyer in campus rape lawsuits—representing the accused.

Mr. Miltenberg insists his decision to sue a number of universities on behalf of male students who have been suspended or expelled following sexual assault accusations is not inconsistent with any of the above. He’s already filed four lawsuits—against Vassar College, Columbia University, University of Massachusetts Amherst and Drew University—will file several more before month’s end, and is consulting on 20 or so appeals at the college disciplinary level. In each, he is suing the schools for violations of the Title IX gender-parity law of 1972, contractual claims, unfair trade practices, as well as a number of tort claims.

If you feel like you’ve been reading more about campus rape of late, that’s because you have—most recently in a New York magazine cover story in September. The trend has been gathering steam since the U.S. Department of Education’s Office of Civil Rights sent a letter to colleges nationwide on April 4, 2011, mandating policy changes in the way schools handle sexual assault complaints, including a lowering of the burden of proof from “clear and convincing” evidence to a “preponderance” of evidence. Not surprisingly, there has been a marked increase in women coming forward with such complaints.

That doesn’t bother Mr. Miltenberg at all. The man is not pro-rape, for God’s sake. What does bother him is the way that many schools have handled the complaints.

Every single one of the men he’s representing, Mr. Miltenberg argues, has suffered egregious due process violations in closed-door college hearings. (He also believes that his clients are innocent of the charges against them.) And that is how he has found himself in the decidedly impolitic position of not only defending those accused of rape, but also suing on their behalf.

Impolitic, perhaps, but he’s also in good company. Twenty-eight current and retired Harvard Law School professors recently sent a letter to the university asking it to abandon its new sexual misconduct policy, arguing, as Mr. Miltenberg has more generally, that the new rules violate the due process rights of the accused. “This is an issue of political correctness run amok,” Alan Dershowitz, an emeritus professor, told a Boston Globe reporter.

Mr. Miltenberg didn’t go looking for these cases. Indeed, the first one landed in his lap and the inquiry wasn’t even directed at Mr. Miltenberg. In early 2013, Peter Yu, a student at Vassar, was at a loss for how to defend himself against accusations of nonconsensual sex—and even thinking of suing his accuser for defamation. The only problem? Not only did he not have a lawyer, he was a Chinese national attending Vassar on a student visa, and had no idea how to go about getting one. So he did what anyone in his position would do—he Googled “Asian-American lawyer.” That’s how he found the name of Kimberly Lau, a 33-year-old associate at Nesenoff & Miltenberg.

Mr. Yu called the law firm and insisted on speaking with Ms. Lau and no one else. She was curious enough to take the call and, after speaking to Mr. Yu and researching the issue, she concluded that while he might not have a defamation case, he might have something else entirely: a suit accusing the school of violating Title IX. Ms. Lau convinced Mr. Miltenberg to take on the case and has been running point on most of the Title IX suits since. She acknowledges the potential legitimizing effect that having a relatively young female lawyer on one’s side might have in such cases but also claims gender blindness when it comes to her motivations for representing them at all.

“Yes, they’re male students,” she says. “But they’re also victims of a system they trusted, paid money to, thought would give them an education and help them on their way to establishing themselves in a career. That’s exactly what I did. And to see their futures being obliterated by a mix of false statements in the first instance but ultimately by the colleges themselves administering kangaroo courts … that’s highly offensive to me.” (In the Vassar case, the school refused to consider as exculpatory evidence Facebook messages from Mr. Yu’s accuser saying she’d “had a wonderful time” the night of the encounter.)

Ms. Lau and Mr. Miltenberg make an unlikely team—the short, scrappy New York Jew and the taller, more carefully spoken third-generation Hawaiian of Chinese and Korean heritage. But they are very much on the same page on this issue. Neither of them is saying that rape doesn’t have devastating and life-changing consequences for its victims. They’re simply saying that a mishandled rape accusation—especially if it’s unfounded—does, too.

Between the two of them, Mr. Miltenberg and Ms. Lau get about 10 calls a week from parents whose sons have been accused, suspended, or expelled. Too many of those calls, says Mr. Miltenberg, describe the same basic story: “The majority of them have botched the investigations, either on purpose because they’re simply pandering to the current political climate or because they’re not equipped to conduct them in the first place.”

In mid-September, for example, Mr. Miltenberg got a call from the father of a Division I wrestler in Tennessee who’d been accused of sexual assault. After a four-month investigation, the man’s son was found not guilty by college investigators. And then 24 hours later, the hearing officer had a change of heart. “Here’s how that probably played out,” says Mr. Miltenberg. “Someone got the hearing officer on the phone and asked them, ‘Are you out of your fucking mind? We’re not going to be the school that lets this kid stay on campus. Get him out of here for a year and when it quiets down, bring him back. We don’t need 100 women walking around here with mattresses.’ ”

He’s referring, of course, to Emma Sulkowicz, the Columbia University student who has become the face of what New York calls “the revolution against campus sexual assault.” She’s done so by protesting the “not responsible” verdict Columbia rendered against Jean-Paul Nungesser, the man she accused of raping her, by carrying a mattress with her everywhere. She has referred to the protest as performance art, and is receiving class credit for doing so.

Mr. Miltenberg, who is consulting for Mr. Nungesser, has choice words regarding Ms. Sulkowicz’s performance, and they’re not the kind that are going to win him any friends: “While drawing attention to the important issue of campus rape, she’s clearly enjoying the celebrity she’s created through the perverse spectacle of carrying her mattress around campus. But the attendant media frenzy has seemingly legitimized an event, which, after an investigation and hearing, the University determined did not occur—and which the NYPD has thus far declined to pursue.

“What has clearly been lost in all of this,” Mr. Milternberg continued, “is that she has achieved this celebrity status through a systematic campaign of publicly defaming and destroying the life of a young man. It’s absolutely mind-boggling to me that Columbia has sanctioned her conduct by giving her course credits, all after finding that the young man was not guilty.”

When I asked Mr. Miltenberg how he feels about the White House throwing its weight behind the wave of sexual assault accusations with the launch of the “It’s On Us” branding campaign in late September, he sighed. “When that happened, things went from bad to really bad for the position we’re taking. But I think people are ignoring the real—and terrible—impact on some people’s lives. Compare it to the capital punishment debate, where people are adamant that killing one innocent man is more tragic than all the arguments you can make in favor of capital punishment. Here, because the ramifications are not so severe as death, people seem more willing to put up with fact that some innocent people might get caught up in the rush to judgment. And that’s a very slippery slope.”

A self-described outsider, Mr. Miltenberg says he’s motivated as much by the desire to take on institutional hubris as he is to defend the wrongfully accused. “Look, I’m not a senior partner at Blank, Blank, and Blankety Blank. I’m just Andrew Miltenberg with an office across the street from Penn Station. But if you dare question the motives of an Ivy League School, you’re suddenly trapped in a room with a bunch of white-shoed guys with Roman numerals after their names. And they’re all harrumphing about the audacity of questioning anything they do. Well, we’re questioning them. And we won’t stop until the schools admit that they need to severely revamp their approach to handling sexual assault accusations.”

Or abandon it entirely: he thinks it should be up to the criminal justice system to handle campus complaints that rise to the level of felonies. “A school’s disciplinary board wouldn’t be dealing with a campus shooting, would they? So why are they dealing with sexual assault?”

Mr. Miltenberg has always been motivated by a bit of legal restlessness, and he insists that the Title IX lawsuits aren’t going to become the focus of his practice. “When the pendulum starts to swing back and this becomes a fairer process for those accused, then I’m done with it,” he says. “I have no desire to turn this into a full-time thing. If I did, I could have taken six more cases this week.”

Source: http://observer.com/2014/10/pro-due-process-does-not-equate-to-pro-rape/#ixzz3H7LTLnGT
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Oct 242014

Two White House statistics on campus sexual assault that can’t both be true

Ashe Schow
October 22, 2014

White House claims that one in five women will be sexually assaulted while in college, and that just 12 percent report the crime, cannot both be true, according to American Enterprise scholar Mark J. Perry.

In January, a White House task force made the two claims, but Perry — who is also an economics professor at the University of Michigan in Flint — did the math using sexual assault statistics from Ohio State University and found a major discrepancy. Perry originally noted this discrepancy in May, but has updated his statistics since OSU released its 2013 numbers.

“Using actual reported crime statistics on sexual offenses at almost any US college and applying the White House claim that only 12% of campus sexual assaults actually get reported, we have to conclude that nowhere near 1 in 5 women are sexually assaulted while in college,” Perry wrote. “Alternatively, if the ‘1 in 5 women’ claim is true, the percentage of sexual assaults that get reported to the campus police would have to be much, much lower than 12%. In other words, the claims that the White House uses don’t work together and they therefore both can’t be simultaneously correct.”

Perry found that, using the most recently available data from OSU, there were 104 reports of sexual assault for the four-years between 2010 and 2013. These reports included a broad range of incidents both on- and near-campus. If these were just 12 percent of the total number of sexual assaults, then 763 would have to have been unreported, for a total of 867 sexual assaults occurring in that four-year period.

“The Columbus campus of OSU has a total female student population of about 28,000. Dividing the 867 estimated sexual assaults over a four-year period into the 28,000 OSU female students would mean that only 3.1% of OSU women, or about 1 in 32.3, would be sexually assaulted while in college,” Perry concluded. “Certainly that’s still too high, but not even close to the White House claim that one in five (and 20% of) female students are sexually assaulted while in college.”

Perry notes that his calculations assume that 100 percent of the sexual assaults on OSU were male on female altercations, none were filed falsely and none were reported by faculty or staff. If any one of those assumptions isn’t accurate (as in, any of the sexual assaults were same-sex encounters or filed falsely), then Perry’s 3.1 percent statistic overestimates the prevalence of sexual assaults.

Alternatively, Perry notes, for the one in five statistic to be true for OSU, there would have to be 5,600 sexual assaults during that four-year period, or 1,400 every year or nearly 4 a day. This would mean, based on actual statistics from OSU, fewer than 2 percent of sexual assaults had been reported.

Proponents of the one in five myth would probably respond that OSU is just one school (and possibly point out my own distrust of limited-scope studies). So I looked up the statistics for schools that have had some high profile rape or sexual assault cases in recent years.

Let’s start with Duke University. For the same four-year period between 2010 and 2013, Duke had 47 reports of sexual assault on its main campus, hospital and medical research areas and marine lab. The reports include rape, fondling, incest, statutory rape, stalking and domestic and dating violence.

If that’s just 12 percent of what’s reported, that means there would have been 344 unreported offenses for a total of 391. Duke has a total female population of about 7,446, meaning that 5.3 percent of the population has been victimized in a sex crime of some kind — far below the 20 percent statistic the White House is pushing.

The numbers are similar for other schools I researched, except for Occidental College. Due to a broader category of sexual assault reporting adopted in 2013, the data there show that if only 12 percent of sexual assaults are reported, then about 73 percent of women on campus have been sexually assaulted. Perhaps Occidental is an especially horrible place — or more likely, the 12 percent number is false — or the new sexual assault reporting standard is so broad that most of its male students are being incorrectly labeled as rapists.

The bottom line, from Perry: “Women and men attending college today, their parents, their college administrators and professors, and society in general, are all much better served by the truth about college sexual assault than by Team Obama’s misleading, exaggerated, and false claims about ‘1 in 5 women will be sexually assaulted while in college.’”

Source: http://www.washingtonexaminer.com/two-white-house-statistics-on-campus-sexual-assault-that-cant-both-be-true/article/2555139

Oct 242014

How the Education Department Warped Title IX

David Wilezol
October 22, 2014

When Congress passed the Title IX section of the Education Amendments of 1972, it aimed simply to offer women more opportunities to participate in on-campus athletics. Over the years, however, Title IX has become the legal foundation for the Education Department to insinuate itself into sexual assault cases.

The key passage of Title IX reads, “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.” In 1977, a Yale law student named Catherine McKinnon, tired of suffering on-campus sexual harassment that went unaddressed by the school, interpreted Title IX to argue that sexual harassment (and by extension, sexual assault) constituted a sex-based limitation of educational opportunity. McKinnon and several other students filed in the lawsuit Alexander v. Yale in federal, which, although dismissed on the basis of the plaintiffs having no standing, goaded Yale into establishing a grievance process for sexual harassment cases.

Hundreds of schools would take similar steps in the next few years. The McKinnon case was foundational in opening the door for on-campus sexual assault cases to be considered Title IX violations, and by extension, of concern to the federal government.But the McKinnon case never led to any watershed Supreme Court ruling that declared sexual assault cases must be considered Title IX violations.

Lacking a judicial mandate, the Reagan Department of Education was slow to interpret on-campus sexual assaults as Title IX violations. According to Terry Pell, former Deputy Assistant Secretary for Civil Rights in the Reagan-era Department of Education, and now head of the Center for Individual Rights, such violations were more the fault of students, not schools. “I don’t recall that OCR did anything on the topic of sexual assault when I was there. While schools were thought to be liable for offensive classroom behavior by professors, they were not thought to be liable for offensive behavior by male students outside of the classroom,” he told me.

However, one event during the Reagan years changed the way colleges would approach sexual assault. In 1986, a Lehigh University student named Jeanne Clery was raped and murdered in her dorm room, bringing renewed attention to the issue of sexual assault. In response, in 1990 Congress passed the Clery Act, which required schools to report crimes that occurred on campus to the public and the federal government. The Department of Education, moreover, would monitor compliance. Probably the most egregious recorded violation of the Clery Act occurred at Eastern Michigan University in 2006. EMU’s administration was fined hundreds of thousands of dollars for failing to report the sexual assault and murder of a student. Currently, the Penn State football sex abuse scandal is also being reviewed under the Clery Act.

The 1992 emendation of the Higher Education Act of 1965 stipulated that companies receiving federal financial aid had to “develop and distribute a statement of policy regarding (1) campus sexual assault programs, which shall be aimed at prevention of sex offenses; and (2) procedures followed once a sex offense has occurred.” The law’s revision also provided competitive grants for sexual assault training and prevention on campuses. Naturally, all such compliance was to be administered by the Education Department.

In 1997, the Clinton Education Department released a new set of guidelines for addressing sexual harassment cases. Like the Clinton Education Department, the George W. Bush administration reaffirmed in 2001 that schools should handle sexual harassment under Title IX, but also did little to address how schools should handle student-on-student sexual assaults.

The Obama administration has embarked a new and unprecedented level of federal involvement in sexual assault cases. The signature step in the Obama administration’s stance on the issue was the “Dear Colleague” letter of 2011, which asserted that sexual assault claims must be handled under Title IX. The Letter also included a number of disturbing recommendations, the most troubling of which are those involving on-campus sexual assault proceedings. The letter “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser,” and encourages a “preponderance of evidence” standard for determining a defendant’s guilt or innocence. Such a suggestion runs counter to the “beyond a reasonable doubt” standard used by civil courts. As Peter Berkowitz has written, this means that “universities are institutionalizing a presumption of guilt in sexual assault cases.”

The guidance in the 2011 Dear Colleague letter has troubling implications for democracy. The extensive procedural rules governing the adjudication of sexual assaults were never approved by Congress. They were merely suggestions offered up by Assistant Secretary of Civil Rights Russlyn Ali and a cadre of unelected bureaucrats in Washington. From such a perch, it is easy to vague yet highly consequential rules like, “a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.” A rape, of course, would constitute a hostile environment. But an overly zealous government examiner or on-campus Title IX coordinator could plausibly interpret less severe transgressions as evidence for a campus marked by sexual hostility. A whole school’s reputation could be tarnished on the whims of a handful of unelected functionaries.

The Obama administration’s next tactic in its campaign against sexual violence on campus was a May 2014 press release naming at least 55 colleges and universities that were at the time under investigation for improper handling of sexual assault and harassment cases. (It was probably cold comfort that the letter noted a college or university’s appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law.”) The terms of settlement of many of these types of cases confined to closed-door negotiations, but probably do not look so different than what Tufts University agreed to in its 2014 settlement: an implementation of diktats such as “conduct periodic assessments of the campus climate,” and “report annually to OCR on the steps taken by the Title IX coordinator to prevent and respond to sexual assault and harassment.” There was also a monetary payout to the assaulted student.

With tougher guidelines now in place, schools can expect a higher level of scrutiny from the Education Department in sexual assault cases. Any real challenge to the new 2011 guidelines would have to come from schools themselves, since they are the only entity with legal standing to challenge the standards. But schools are reluctant to challenge Title IX guidelines. Electing a Republican administration that could rewrite the standards might solve the problem, but such a move is politically impractical. If history is any guide, then, the Education Department’s involvement in adjudicating on-campus sexual assaults will only continue to grow.

Source: http://www.mindingthecampus.com/2014/10/how-the-education-department-warped-title-ix/

Oct 242014

Title IX: From Athletics to Assault

October 24, 2014

How did a federal law aimed at improving opportunities for college women to participate in athletics become a vehicle for extensive federal involvement in schools’ sexual assault programs?

David Wilezol, co-author of “Is College Worth It?” with former Education Secretary William Bennett, explains how Title IX has become unrecognizable. In 1972, Congress passed the Education Amendments, which included a section that forbade federally-funded colleges from excluding women from activities on the basis of sex: “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.”

That section — known as Title IX — was meant to improve athletic opportunities for women. But in 1977, Yale law student Catherine McKinnon insisted that sexual harassment was a limit on educational opportunity. She and a group of friends filed a lawsuit on that basis against Yale. The suit was dismissed on standing grounds, but Yale began to create grievance processes for harassment cases, as did other schools.

Wilezol explains that there was no federal mandate that sexual assault cases be considered Title IX violations — the Supreme Court had never addressed the issue. Terry Pell, who served in the Reagan Department of Education’s Civil Rights division, said that his department considered sexual harassment and assault the fault of the student perpetrators, not the fault of the schools. However, a rape and murder at Lehigh University in 1986 prompted new legislation in 1990, from which point the federal government grew more and more involved in sexual assault on campus. Wilezol explains:

In 1990, Congress passed the Clery Act and required that schools report on-campus crimes to the federal government. The Department of Education is in charge of compliance, and schools are charged for failing to report incidents.
In 1992, Congress required that any schools receiving federal funding develop sexual assault policies and grievance procedures. The Department of Education also monitored compliance with the law, and grants were given to schools for providing sexual assault training.
In 1997, the Department of Education — and the Bush Administration in 2001 — said that schools should deal with sexual assault under Title IX.
Recently, the role of the federal government in sexual assault on campus has become even larger. Wilezol writes that in 2011, the Obama administration required sexual assault claims to be handled through Title IX. It also discouraged schools from allowing accused parties to cross examine their accusers, encouraging schools to apply a “preponderance of the evidence” standard when determining an accused’s guilt, rather than using a “beyond the reasonable doubt standard.”

Wilezol warns that schools are going to find themselves under even greater scrutiny in coming years, thanks to the new guidelines from the Education Department. He encourages schools to challenge the new procedures but fears that such challenges are unlikely.

Source: David Wilezol, “How the Education Department Warped Title IX,” Minding the Campus, October 22, 2014.


Oct 242014

You kids are getting screwed — and not in the good way

Andrea Peyser
October 23, 2014

There is to be no more joyful sex on college and university campuses in New York City. No more furtive gropes or copped feels.
Two words were tucked into a bill intended to curb sexual assault on public and private campuses introduced to the City Council Wednesday by Public Advocate Letitia James. These words have haunted randy, red-blooded students of higher education from California to the New York state university system: affirmative consent. Scary.

Affirmative consent takes the old sexual warning, “no means no,’’ to the next level. If the bill passes through the council and becomes law, as it’s almost certain to do, students — of both or no genders — will be on notice that they’d better get enthusiastic consent every step of the way when engaging in an ancient pastime.

This can take the form of shouting “Yes, yes, yes!’’ as a would-be suitor touches a forearm. It can also be a vigorous and unambiguous head nod as he or she (or both sexes or no sex) reaches for the zipper of one’s trousers. Failing to do so puts a lover at risk of being branded a rapist.

What a buzzkill.

“I feel bad for the kids today,’’ criminal-defense lawyer and radio personality Ron Kuby, 58, told me. “In my day it was ‘Let’s get home and get high and listen to the Moody Blues and Bob Dylan and screw.’ Now you can’t get high, no one has made a decent album in a generation and the times they are a-changing.’’

But Kuby suggested that young people videotape encounters to cut down on false rape accusations. “I can see ways the kids can make it sort of hot,’’ he said.

Then he loudly blew me a kiss goodbye over the phone.
“I guess I should have asked first, ‘May I blow you a kiss?’ and waited for you to say ‘yes,’ ’’ Kuby said. Too late.

Last month, California Gov. Jerry Brown signed a so-called “yes means yes’’ law, the first of its kind in the nation. It requires post-secondary schools, that get state money for student financial aid, to adopt strict policies for investigating complaints of sexual assault. This means that a student must get a “yes’’ before going at it, or risk being accused of forcing a partner into sex. Someone who is drunk, drugged, unconscious or asleep cannot grant consent.

Drunken hookups are so 20th century.

Earlier this month in New York, Gov. Cuomo ordered trustees of all 64 schools in the state university system to adopt requirements for affirmative consent. “Silence, in and of itself, cannot be interpreted as consent,’’ Cuomo said.

Among other things, the proposed NYC Campus Safety Act calls for supplying students with lists of rape-crisis centers and sex-assault helplines.

But then, the proposal calls for required “affirmative consent education,’’ a kind of indoctrination that will only guarantee that more males (and the rule is aimed mainly at males), guilty or not, will be accused of sexual violence.

“We’re trying to encourage healthy relationships,’’ Councilwoman Vanessa Gibson, the bill’s co-sponsor, told me. “We have boyfriends and girlfriends, same-sex couples, transgender, married couples. We want them to understand that you have to give consent.’’

In April, President Obama’s administration declared that nearly 1-in-5 women attending American colleges and universities is the victim of unwanted sex acts. Never mind that the bogus 1-in-5 statistic was based, in part, on a 2007 online survey of students at two universities, some of whom equated getting sloshed and getting it on to being raped, according to Christian Hoff Sommers, resident scholar at the conservative American Enterprise Institute. She believes a better statistic is in a 2003 Bureau of Justice report putting the campus sexual assault rate at 1-in-40 students.

Campuses, under pressure to fight sexual assault — their government funding may depend on it — hold tribunals (some men call them “kangaroo courts’’) that are unfairly weighted against the accused. Being convicted can lead to penalties including expulsion.
I guess using protection has taken on a whole new meaning. Students, if you plan to do it, be prepared. Bring your smartphones.

Source: http://nypost.com/2014/10/23/you-kids-are-getting-screwed-and-not-in-the-good-way/

Oct 232014

Dean Bacon’s Demise

James Tobin
October 22, 2014

A sign of things to come

That particular meeting of the Political Issues Club had already gotten noisy when Mary Ellen Carter stood up and lobbed a verbal hand grenade in the direction of Deborah Bacon, U-M’s dean of women.

It was Monday, March 4, 1958, and the topic was the University’s heavy hand in the regulation of student housing.

Michigan Daily article on Dean BaconMary Ellen Carter was a senior, but, like every other female student at U-M, she still had to live in a residence hall, a sorority, or a “League House,” one of the University-approved boarding houses for women students.

League houses were privately owned, but they had to follow the University’s rules for women, including when to be home at night and when they could have gentleman “callers.” The chief enforcer of these rules was the dean of women.

Carter’s little bombshell: She had invited a “Negro caller” to her League House, and her landlady had barred him at the door.

“I was forced to live in University housing which did not permit me to have the callers I chose,” Carter declared. “I feel I’m entitled to have a Negro caller as well as a white caller.”

Dean Bacon stood her ground.

The landlady’s rules were her own affair, Bacon said. The University couldn’t tell a private property owner whom to let in her house.

Dancers 1945-55

Another senior, Robert Yesner, rose to challenge the dean.

The University didn’t hesitate to forbid the consumption of alcohol in League Houses, he said. Why couldn’t it forbid racial discrimination?

“That may be logical, but it may also be illegal,” Bacon shot back. “The University does set up certain standards of behavior for its students. But [the landlady’s] home is her property. You’re paying her rent.”

With that the dean and her student antagonists “became worked up into an unbecoming emotional state,” reported the Daily,“and on several occasions the dean threatened to leave the room.”

The shouting over Mary Ellen Carter’s “Negro caller” didn’t change anything in the short run. But it was a sign of things to come, and before long, Dean Bacon would have no ground left to defend.

Losing ground

When she had taken the position of dean of women in 1950, the reign of “in loco parentis” — the University’s rules for students’ private lives, especially the lives of women — was seldom challenged. She’d been a psychiatric nurse in New York’s Bellevue Hospital and an Army nurse in Normandy during World War II. So wayward students held no terrors for her, and she lost no time in establishing herself as a strong authority. (She also could go toe-to-toe with faculty; she had a PhD in English and doubled at Michigan as an assistant professor.)

Dean Bacon favored dress codes and other strict behavioral standards were the norm through the ’50s. (Image courtesy of U-M’s Bentley Historical Library.)

Bacon was a strict enforcer of curfews and dress codes — no Bermuda shorts in the library, for example, and only skirts and dresses for dinner in the residence hall cafeterias — and she was tough on “wolves” among the male students. (In a meeting she once was heard to declare: “Tell those men to keep their hands off my women!”) When Michigan men launched the nation’s first panty raid on a spring night in 1952, it was Dean Bacon who dispersed a crowd of women from the all-female Hill dorms who tried to stage a counter-raid on the men’s dorms.

“We take the place of the home and church,” she once said, “in a preservative, conservative fashion.”

Not-so-silent generation

Bacon’s manner rubbed many students the wrong way — women as well as men. The post-Korea cohort of students was called the “Silent Generation,” but as the 1950s wore on, they became increasingly outspoken about University regulation of life outside the classroom. The modern movement for black civil rights was underway in the South, and a movement for student rights was starting to stir in its wake. At Michigan, students cast Deborah Bacon as the chief villain and guardian of the old order.

In the fall of 1958, women residents of Stockwell and Mosher-Jordan Halls organized boycotts of their dining halls when Dean Bacon ignored their petitions in protest of substandard food. Then came a steady drumbeat for the University to allow women students to live in apartments. When the University relaxed those rules a bit, students demanded that women be allowed to live wherever they chose. Reports also circulated that Dean Bacon took disciplinary action against white women who dated black men or had black women friends.
By the time Tom Hayden, soon to be a founder of the radical Students for a Democratic Society, became editor of the Dailyin 1960, students were in full-scale revolt against Dean Bacon’s reign. Early in 1961, student protesters compiled a list of grievances against her and sent them to the Regents, saying:

“It is difficult if not impossible to draw distinctions between Miss Bacon’s roles as individual and as the Dean of Women, or between her personal attitudes and her official policies … Where we debate Miss Bacon’s stated rules we are often debating her methods of carrying out these rules; when we challenge her attitude we are often challenging the policies in which that attitude is manifested.”


For a time Bacon was defiant. She traced the opposition to “perennial male-resentment,” saying: “It is axiomatic that young men deplore the Dean of Women.” She said many women students actually welcomed the strict enforcement of curfews. “I’m their shield and buckler,” she declared, “a friend in time of trouble.” Without “techniques … to control pregnancy at any time and at practically no cost,” she said, college women, if they were to succeed as students, needed protection against men that only University authorities could provide.

Bacon traced the opposition to “perennial male-resentment,” saying: “It is axiomatic that young men deplore the Dean of Women.” She said many women students actually welcomed the strict enforcement of curfews.
But the students’ grievances had an impact. The Regents turned their petition over to a faculty committee on student affairs. After a long review, the committee recommended a major shake-up in the University’s management of student life, including the abolition of the offices of the dean of men and the dean of women. A second faculty committee showed signs that it would concur.
In the end, Dean Bacon jumped before being pushed. She announced her resignation in September 1961. Earlier, when she had crossed swords with President Harlan Hatcher, she had said: “I can’t tell the University of Michigan’s trolley car where to go, but I can always step off it, can’t I?” Now she was stepping off. She continued to teach in the English Department until retiring from the University in 1969.

Not long before she died in 2005 at the age of nearly 100, Bacon spoke at length to a U-M student, Lindsay Helfman, who wrote a senior honors thesis about the dean’s tenure.

The students’ demands for more freedom circa 1960 “seemed very important at the time,” Bacon said, “but actually they were mostly minor.

“What mostly changed was the culture … There was a great cultural change, very hard for everybody.”

Source: http://michigantoday.umich.edu/dean-bacons-demise/

Oct 222014

Hooking Up at an Affirmative-Consent Campus? It’s Complicated

Emily Bazel
October 21, 2014

One afternoon during Labor Day weekend, a group of 15 or so Yale freshmen met in a classroom where history and French classes would soon be held. As they snacked on pretzels and Skittles, a few volunteered to act out a series of scenarios in which one student asks another out for frozen yogurt. In the first bit of role playing, one student was told to make it clear, in an easygoing way, that he or she wants to go out. The recipient of the invitation was told that he or she also wants to go but has a paper due. “How can you show enthusiasm while still turning down the invitation?” a prompt on a card asked. The answer generally wasn’t hard to convey or, for the freshmen watching, to interpret. Most students found that they knew how to demur while keeping the door open for next time.

In the second scenario, the stakes rose. Now the inviter must get the other person to the frozen-­yogurt shop. And the invitee does not want to go, although — like most of us — he or she doesn’t want to be rude. “How would your character handle this unwanted invitation?” the second card read. The interaction made everyone in the room uncomfortable, as the inviter grew increasingly persistent and the invitee tried to fend the other off.

The intended lesson of this 90-minute workshop was that the line between a request and a demand, welcome interest and unwanted pressure, is usually fairly obvious. “This is the skill set people hammer out as little kids,” says Melanie Boyd, an assistant dean of student affairs. She wants students to realize that they know how to recognize agreement, refusal and ambiguity.

The workshop reinforced policies, newly adopted by a growing number of universities, requiring students to make sure they have continuing affirmative consent for every phase of a sexual encounter. The policies, many of which have gone into effect in the last year, were created to help clarify internal university investigations of sexual-assault accusations. In the past, the main question was whether the person (usually a woman) who claimed that she was raped had made it clear that she said no (“No means no”). The new rule shifts the inquiry to whether the student accused of assault got a signal of consent (“Yes means yes”). In California, Gov. Jerry Brown recently signed an affirmative-consent bill, making “yes means yes” the standard at the state’s colleges and universities. To continue to receive state funds for student financial aid, California institutions investigating allegations of sexual assault must determine whether both parties gave “affirmative, conscious and voluntary agreement.” Lack of resistance and silence no longer constitute proof of consent.

“Yes means yes” is part of a new conversation on campus. When I was a Yale student more than 20 years ago, I remember a few women setting up a microphone, after a Take Back the Night march, to tell stories of what we called date rape. But I don’t remember anyone thinking the university would do anything about it. Ten years ago, I wrote about a handful of women who wanted better treatment from Yale, but their complaints seemed isolated and not much came of them. Then beginning around 2011, student activists from across the country started going public. They found one another online, called themselves survivors and demanded that their institutions change. And now everyone is talking about the problem, including President Obama.

The activism has forced not just administrators, faculty members and politicians to reckon with what goes on when students have sex, but also young men on campus. The White House wants them to sign on to a campaign called It’s on Us. Fraternities are holding training sessions about preventing sexual assault (as many cope with related investigations and lawsuits). At Yale, students are required to participate in multiple workshops on sexual misconduct. “You can’t go on Facebook or Twitter for 10 minutes without seeing a post about these issues,” a 19-year-old English major told me.

He was confidently navigating the cultural shift. “Asking, ‘Are you O.K. with this?’ doesn’t have to be uncomfortable,” he said. “And in the aftermath, it’s huge. You have a more positive memory of having sex with that person, because you don’t feel worried.”

But most male students expressed some nervousness about accidentally running afoul of consent rules, especially because drinking usually precedes a casual hookup. “It creates a crazy gray area that scares the hell out of everyone,” one 21-year-old economics major told me. Some wondered whether training can really prepare you for what is often sex between relative strangers. One freshman woman explained the complicated dynamic by telling me about another freshman-orientation workshop, this one on intimacy. She was startled to hear several men say that they found holding hands more intimate than getting a hand job. The male students I talked with pointed out that holding hands, especially in public, is something you do when you are in a relationship, while a hand job could happen during a hookup. In theory, when it comes to sex, it might make sense to talk about what the other person wants as it’s happening. But to do so, you might have to be a little bit tender, a little bit vulnerable. It’s hard to have that sort of conversation if there’s no intimacy.

This is a great law and sets expectations clearly. Just the existence of the law and education on campus will reduce sexual assault and…

“It would be much more gratifying, and in both parties’ best interest, for both the girl and guy to be straightforward — ‘Hey, I’m willing to do this,’ ” a 19-year-old male water-polo player said. “And yet the vocabulary for it is not really there.” Affirmative-consent policies try to address this by recognizing body language as a form of consent. But to most of the men I talked to, this seemed like an invitation to more ambiguity, not less.

One area where the men were more at ease was “bystander intervention.” Universities know that probably the biggest threat to women on campus comes from a small group of serial predators who, research suggests, are responsible for most assaults. Some institutions, like Yale, are training students to watch for warnings signs that someone might be at risk. Sophomores take a workshop in which they watch an eight-minute video of a girl who goes out dancing, drinks to the point of bleary-eyed obliteration and lets a guy take her into a bedroom, where he forebodingly shuts the door. The second half of the video rewinds, noting the points at which a friend, a bartender, a stranger or a roommate could have stepped in to protect her. The interventions mostly aren’t lengthy or heroic. They’re small moments, and students are encouraged to be alert to indications that someone is exerting or feeling sexual pressure and to feel comfortable stepping in.

And they do. Every male student I talked to had a story about intervening on the dance floor or at a party, mostly by just saying hello to someone who looked like a target of unwanted aggressive attention. The students said they looked out for their friends. They said they looked out for nonfriends who seemed headed for drunken trouble. As observers of a potentially fraught sexual encounter, if perhaps not as participants, they did know how to ask, “Are you O.K. with this?” “Doing that yourself is way more awkward than doing it as a bystander,” a 20-year-old rugby player said.

In the quest for a safer campus, it probably comes more naturally to institutions to help students learn prevention than to adjudicate disputes over consent after the fact. Education has always been the business of universities, and while federal law requires those that receive federal funds to make investigating and responding to sexual-assault complaints their business too, it’s not easy. Even as survivors push for more protections for victims, other groups — including more than two dozen Harvard law professors, in a recent statement — are challenging new disciplinary procedures, saying they are unfairly stacked against those accused of sexual assault. This is difficult territory to get right. But for the first time, at some universities throughout the country, relative indifference has given way to dead seriousness.

Emily Bazelon is a staff writer for the magazine and teaches a writing course at Yale Law School.

A version of this article appears in print on October 26, 2014, on page MM13 of the Sunday Magazine with the headline: The Meaning of Yes.

Source: http://www.nytimes.com/2014/10/26/magazine/hooking-up-at-an-affirmative-consent-campus-its-complicated.html

Oct 222014

A false accusation can spell end of college male’s future

October 18, 2014

RE “RETHINK Harvard’s sexual harassment policy” (Op-ed, Oct. 15): While the legal critiques of the Harvard Law School faculty members are critically important, so too, from a psychological perspective, are false sexual allegations by women. Such allegations are dismissed by proponents of affirmative consent policies, who say that women never lie about rape, or who cite a 3 percent to 8 percent rate of false allegations.

A recent summary of the false abuse and rape allegation literature can be found in a 2013 book by Phillip Cook and Tammy Hodo titled “When Women Sexually Abuse Men.” While statistics in this literature are problematic, Cook and Hodo report four studies that found false allegation rates of 62 percent, 41 percent, 50 percent, and 60 percent.

Proponents of these policies also demand an evidentiary standard of “preponderance,” which basically is a coin toss where all a university administrative committee needs to deem a man guilty of sexual assault and expel him is a smidgen above 50 percent.

This “preponderance” standard raises the likelihood that a college male who engaged in consensual sex will be wrongly convicted and expelled. Once this happens, that college male has no future.


Gordon E. Finley

Source: http://www.bostonglobe.com/opinion/editorials/2014/10/17/false-accusation-can-spell-end-college-male-future/LZaqmN6RNjNX6hYdrbs16H/story.html

Oct 222014

Federalizing Sex

Wendy McElroy
October 22, 2014

On Sept. 28, California responded to an “epidemic” of campus rape by passing “affirmative consent” legislation. On Oct. 3, Gov. Andrew Cuomo (D) ordered New York’s state universities to make affirmative consent the centerpiece of sexual assault guidelines. New Jersey, Connecticut, Massachusetts and others are considering similar measures.


They shouldn’t. Why? Affirmative consent embeds a double standard into society and law. The causal “threat of campus rape” is highly exaggerated. And affirmative consent is not offered as a solution but merely as prelude. The federal government has announced the next step: the “It’s On Us” campaign.
But, first, why reject the first step?

A double standard

Under “affirmative consent,” whoever initiates sexual contact is responsible for obtaining explicit and ongoing consent for every act of progressing intimacy. Explicit consent must be serially rendered for each kiss, touch, etc. Advocates scornfully call for critics to use common sense in interpretion but, with any policy that drastically impacts lives, it is prudent to heed literal wording. If the wording is not meant literally, then it should be changed.

The policy embeds a double standard. It establishes two categories of adults: those on campus and those not. Adult students are assumed to need more official protection during sexual contact than other adults.

It also discriminates against males who typically initiate sex. In response to 2011 demands by the Department of Education (DOE) and a threat to cut federal funding, university hearings stripped male students who were accused of sexual assault of due process rights, such as facing an accuser. The presumption of innocence was de facto reversed and accusations deemed true until proven otherwise. Although campus hearings cannot impose criminal penalties, they can ruin lives and prompt police investigations.

The threat is greatly exaggerated

The Bureau of Justice Statistics’ National Crime Victimization Survey (NCVS) claims the rate of sexual assault fell by more than 50 percent from 2008 to 2012. This is America’s most reliable source of crime data. Because it measures crimes both reported and not, the NCVS avoids the accusation that its data excludes non-reporting victims.

The NCVS states that about 350,000 sexual assaults occurred in 2012. Affirmative consent advocates claim much higher rates on campus. One in five female students is the commonly offered statistic. According to the National Center for Education Statistics, “about 12.0 million females” will be on campus in fall 2014. That means some 2.4 million females will be sexual victims over the next few years. Indeed, many campuses indicate a rise in reported assaults.

Why such a discrepancy? Campuses embrace a broad and vague definition of sexual assault; for example, alcohol or drug consumption nullifies apparent consent and “offensive” language is included; no sanction is imposed on false reports.

The next federal step in affirmative consent

Federal impetus is behind affirmative consent and pushing. The 2011 DOE letter threatening the removal of federal funds was pivotal, but other measures ensued. In January 2014, the White House Council on Women and Girls published a report entitled “Rape and Sexual Assault: A Renewed Call to Action,” which repeated the one in five figure. A White House Task Force to Protect Students from Sexual Assault was also established. In Congress, the Campus Accountability and Safety Act, S. 2692 and H.R. 5354, seeks to change the ground rules on sexual assault investigations.

And, now, the “It’s On Us” campaign expands the scope of affirmative consent. The first sentence of the White House fact sheet states “[T]he President and Vice President have made it a priority to root out sexual violence wherever it exists,” with a focus on campuses. The goal: “to fundamentally shift the way we think about sexual assault, by inspiring everyone to see it as their responsibility to do something.”

Third parties are urged to act against anything they view as sexual assault or its promotion, presumably including bad jokes. Males are targeted. The fact sheet states the goal of “engaging men,” “getting men involved,” and “motivating college men.” It declares, “Most men are not comfortable with violence against women, but often don’t speak out because they believe that other men accept this behavior.”

Interestingly, the “It’s On Us” pledge and surrounding text says nothing about campuses, but could apply to any situation. “This pledge is a personal commitment to help keep women and men safe from sexual assault. It is a promise not to be a bystander to the problem, but to be a part of the solution.” How long before affirmative consent attempts to leap into mainstream culture?


Oct 212014

Former UH students sue school over sex assault investigation

Benjamin Wermund
October 20, 2014

Two former University of Houston students. expelled in connection with an alleged sexual assault on campus, are suing the school and two administrators, claiming they were denied due process in the investigation and administrative hearings.

The lawsuit calls into question the pressure universities face to crack down on campus sexual assault. The plaintiffs claim they were kept in the dark about the investigation and given little chance to defend themselves.

In a statement, university officials said they are “committed to the enforcement of Title IX, the protections of due process and other legal rights of the parties involved,” but are prohibited from further comment under the provisions of the Family Educational Rights and Privacy Act.

Such pushback has become more common as universities have worked more to crack down on sexual violence on campus. The complaints are a “natural” part of a necessary evolution on college campuses, which have long been rife with underreported and often ignored cases of rape and sexual assault, said John Foubert, a national expert on campus sexual assault.

Multiple studies have shown that 5 percent of college women are victims of rape or attempted rape every year.

“What’s unfair is there has been rape on college campuses for hundreds of years and nothing has been done about it,” said Foubert, a professor at Oklahoma State University and founder of the nonprofit One in Four, which aims to fight sexual violence on college campuses.

Foubert called the lawsuit a “Hail Mary” pass that includes misunderstandings of sexual assault and of the nature of conduct processes at universities.

According to the lawsuit, Ryan McConnell, a former UH student, went drinking at the Den, a campus bar, on Nov. 19, 2011. While there, he met a female student, and the two ended up kissing, then going back to McConnell’s room at the Calhoun Lofts together. There the two, heavily intoxicated, according to the lawsuit, had sex and fell asleep naked on the floor.

McConnell’s girlfriend, Natalie Plummer, came home to find the two on the floor. Plummer made a video recording of the two “because she was mad that McConnell was cheating on her and wanted to be able to confront him about his behavior later,” the lawsuit said.

Plummer led the female student into the hallway and to the elevator, where she recorded her again, according to the lawsuit. The female student was found naked in the elevator by other students and UH police were called.

According to the lawsuit, UH police, along with the prosecutor, determined there was insufficient evidence that any criminal conduct occurred, in part because “the Female UH Student ‘has no memory’ of the incident.”

Plummer posted a photo of the incident on Facebook and later deleted it, and also shared the two videos with a friend. The videos later ended up in the hands of the Harris County Sheriff’s Office.

Three months later, the student filed a complaint with the university against McConnell, saying she believed she was a victim of sexual assault. On March 12, 2012, Richard Baker, a UH assistant vice chancellor and vice president, sent McConnell a letter notifying him that the university was opening an investigation. According to the lawsuit, Baker did not let McConnell know he was the target, but rather said he had “been identified as someone who may have information pertinent to the investigation.”

On Sept. 30, Baker sent McConnell and Plummer a letter saying Baker’s office would conduct an investigation, with findings based on “a preponderance of the evidence.”

McConnell and Plummer submitted written defenses, and Plummer and her attorney met with Baker on Nov. 8. The lawsuit alleges that Baker made several attempts to exclude the attorney from the interview. The lawsuit also claims that Baker asked about evidence that had not previously been provided to McConnell or Plummer, despite numerous requests from their attorneys.

In February, Baker submitted his findings to the dean of students, who concluded that the video “appeared to capture Mr. McConnell physically touching [the Female UH Student] in a sexual manner and, his girlfriend, Natalie Plummer, striking her,” according to the lawsuit, which disputes those interpretations. The report also concluded that McConnell and Plummer “took abusive sexual advantage” of the student by taking a photograph and the two videos and had created an intimidating or hostile environment for her by “preserving then destroying” and “sharing” the video from the dorm room.

McConnell and Plummer had appeal hearings in March and April, but they claim in the lawsuit that they were denied due process in them. They weren’t allowed to cross examine witnesses or to call witnesses of their own, the suit states.

Baker relied upon evidence neither student had seen before, the lawsuit alleges.

On Sept. 24, the two were informed that Richard Walker, the dean of students, agreed with Baker’s findings and that they were expelled.

They are now suing UH and Baker and Walker, claiming, in part, that their constitutional rights to due process were violated.

Source: http://www.chron.com/local/education/campus-chronicles/article/Former-UH-students-sue-school-over-sexual-assault-5834816.php?cmpid=twitter-mobile