In 2011, the Obama administration ordered all campus disciplinary offices to use a lower “preponderance of evidence” standard when charging a student of a sexually related crime. Today, colleges are under intense pressure from both activists and bureaucrats to punish students accused of rape, with little attention given to due process. And with the political climate growing toxic on college campuses, school administrators know that there’s little to gain from defending the accused.
KC Johnson is the coauthor, with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities. Johnson played a prominent role during the Duke University lacrosse rape case in 2006-2007, disseminating facts about the case and calling out the media for presuming guilt of the students involved. He is a professor of history at Brooklyn College and the CUNY Graduate Center.
Seth Barron is associate editor of City Journal and project director of the NYC Initiative at the Manhattan Institute. He writes primarily about New York City politics and culture.
Seth Barron: Hi everyone. Welcome to another edition of 10 Blocks. My name is Seth Barron. I am an associate editor of City Journal. Over the last several years activists and politicians in the media and around the country have claimed that our nation’s colleges and universities are mired in a culture of rape, which officials have ignored or tried to downplay. To combat this rape epidemic on campus, in 2011 the Obama administration’s education department sent a dear colleague letter to every school in the country. They ordered all school officials to adopt a lower preponderance of evidence standard during disciplinary hearings when judging a student accused of a sexually related offense. Previously schools had typically used a much higher clear and convincing evidence standard. Six years later school administrators are still trying to figure this out. Colleges are under intense pressure from both activists and bureaucrats to swiftly punish students accused of rape. Since the order in 2011, there have been numerous lawsuits against universities by men who say they’ve been wrongly expelled. And the lawsuits keep coming. Despite giving lip service to due process rights, administrators know that in today’s political climate there is little to gain from defending a student accused of rape. And they also know that just one mishandled case or protest could end their careers. Joining me today to discuss this issue is KC Johnson. KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. He is the coauthor with Sturt Taylor of the new book, “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” and he has also written extensively about the Duke lacrosse case. KC, thank you for joining us.
KC Johnson: Thank you for having me.
Seth Barron: So what is the scope of the problem? Is there an epidemic of rape on college campuses that requires federal intervention?
KC Johnson: There is an epidemic. The problem is that the epidemic is sort of an assault on due process. And there are two, I think, related issues. The easier question to answer is the campus attitudes. And here I think the Obama administration approach, the media approach, the activists’ approach, is something approximating a kind of big lie approach to the issue. I spent a lot of time on this with the Duke lacrosse case. And what I thought was the one clear lesson from the Duke lacrosse case that was pretty much incontrovertible is that for a variety of reasons campuses are inclined to presume guilt on the issue of sexual assault. And in large part that’s because on basically any gender-related question the typical college campus today is overwhelmingly one-sided and that one side on this issue translates into a principal of believe the survivor. So the idea that Title IX required federal intervention on the side of punishing alleged rapists because colleges and universities are allegedly soft on these people is truly bizarre. But is has become a commonly accepted narrative. And it’s very, very problematic. The tougher question to answer is exactly how many sexual assaults are actually occurring on campus. The Obama administration used this figure of one in five, which would translate to between 400,000 and 500,000 sexual assaults per year. The federal database on this suggests there are actually around 5,000, not 500,000. There are instances where we’ve seen this in world history, most recently in the Congo, where rape was used as a weapon of war. I don’t think many people would associate the typical college campus with the Congo. But the figure was arrived at by some very selective surveys that define sexual assault very, very broadly, in ways that neither the college culture nor the law would understand. But the data on exactly how many assaults there are is ambiguous and the fact is we have 7,000 colleges and universities in this country that are very, very different. I teach at a nonresidential college, Brooklyn College. We have zero sexual assaults for the last five years because our students don’t live on campus. At residential colleges, doubtless there are some instances but nowhere near the figure that Obama maintained.
Seth Barron: What are some of these, not standards, but what are some of these definitions, expanded definitions that have you know, led to this inflated statistic?
KC Johnson: A couple of interesting elements that’s common, especially to elite institutions, is to define sexual assault as unwanted sex. Now of course unwanted and communicated unwanted sex is sexual assault. If you have an instance where a man asks a woman if she wants to have sex, she says no, and he proceeds to have sex with her anyway that’s sexual assault. But in the typical college environment the want doesn’t need to be communicated. And indeed in some states, four now, New York among them, at around 1,500 colleges they use a standard called affirmative consent, which is that both parties need to say yes or unequivocally communicate yes throughout the process. So you can have an instance where two college students have sex, the male student asks the female student do you want to have sex, she says yes, five minutes later in her own mind she has decided that she actually no longer wants to have sex but doesn’t communicate that to the student, that counts as sexual assault at any New York, or California, or Illinois, or Connecticut institution, and many other institutions regardless of state law. And in these sorts of standards, once you are accused there’s almost no way to prove your innocence. Because how can you actually get into that room and prove that the person repeatedly said yes? And that’s not of course how sex normally works. You don’t spend every minute asking the partner do you still want to have sex. So this question of want and the ability not to communicate an unwanted, and then this definition of affirmative consent are the two areas where the offense is defined far more broadly than any state’s criminal or civil law.
Seth Barron: Okay. And so assuming there is an incident like this that occurs between two people, how does this then play out on a disciplinary level with the university or the college? Where does it go? How does it work?
KC Johnson: Okay. The first thing which is critical and I think which a lot of times people don’t quite understand is that it does not go to the police. And that includes it doesn’t go to the campus police, which often are official law enforcement officers. Instead the accusing student files a report, generally to a Title IX official at the institution, who assumes jurisdiction over the investigation and the adjudication of the offense. And schools use one of two procedures. One is called a single investigator model, where the Title IX officer or a person that she designates, and most Title IX officers are women, conducts the investigation, interviews both of the parties and other witnesses as the investigator sees fit, and then makes a determination. There is no hearing, there is no cross-examination, there is nothing. A second procedure does have a hearing but a hearing under terms that no one would recognize as a fair hearing. It has to use the preponderance of evidence standard, per federal guidelines. It has to give the accuser a right to appeal a not guilty finding, per federal guidelines. Per federal guidelines the accused student is strongly discouraged from being able to cross-examine the accuser. In most cases the accused student doesn’t have the right to a lawyer, doesn’t have the right to an impartial tribunal, and the tribunal members have to be trained, they are generally other Title IX bureaucrats, have to be trained in terms that are clearly unfair. The equivalent would be if in the criminal justice system if we had a rape, in rape trials the prosecutor got to train all jurors in rape trials through information that only the prosecutor got to select and the defense had no opportunity to provide similar training. So it’s essentially a system in which the accused student is presumed guilty and then is denied the tools that would be necessary to prove his innocence. So it’s a double rigged system.
Seth Barron: So what kind of punishments can be meted out by these boards, and what opportunity of appeal is there?
KC Johnson: The most extensive punishment is expulsion, which is problematic in a couple of respects. If in fact the guy is guilty, this is by nowhere near enough punishment, because essentially you’ve just sent the guy out to presumably commit sexual assault again without any way of the public knowing that this person has been found a rapist. If the guy is actually innocent and you know, there are, I think, a significant number of these cases where innocent parties are found guilty, this is a life-altering effect. He is likely going to be expelled. His chances of getting into another institution are very remote because what college or university in its right mind is going to accept a student who has been found a rapist by his previous institution? And if we project ahead in terms of how this is going to have a you know, affect him over the rest of his life, we live in a society where you need a college degree, you know, there’s a clear relationship between college education and moneymaking potential, any job that requires a background check is likely going to be foreclosed to one of these students, so these are judgments, even though they are not criminal judgements, that have an effect for the next forty or fifty years. Students in theory have a right to appeal in these processes. But in the real world the chances of a college administrator, who often is the same Title IX official who is overseeing the process, overturning a guilty finding on either factual or substantive grounds is close to zero.
Seth Barron: So how big a problem is this? How many cases are brought before, you know, college tribunals yearly?
KC Johnson: Since 2011 there have been around 25,000 cases reported to the federal government. Not all of these cases yield hearings before tribunals or investigators because in some instances the student will simply withdraw from school once he is charged. And I’m going to use the gendered pronoun here because 99% of accused students are males in the campus system. So there’s no way of knowing exactly how many, but a ballpark figure would be somewhere between 15,000 and 20,000 of these tribunals since 2011. And the number is growing. The reports of sexual assault have risen by around 1,000 per year since 2011, and this is largely a result of very active movement by both the media and by campus activists to encourage the reporting even of dubious allegations. So we have this strange situation where in society as a whole rape remains a very much underreported crime and there are lots of cultural reasons why victims of rape will not report their offense to police, but on campus we sort of have the reverse, where even highly, highly dubious claims, the accuser is encouraged to report on grounds that the campus has a rape culture and there will be something positive in reporting even if the allegations aren’t necessarily true.
Seth Barron: The Duke case, which you’ve written a lot about, you wrote a whole book about it in fact, that got a lot of attention. To what extent was that an outlier? Are there other cases around the country that are as egregious, or should be as well known?
KC Johnson: This was an outlier in one respect, which is that because it went into the criminal justice system, the accused parties eventually had the opportunity to uncover the evidence that led to their innocence. And the critical aspect here was DNA testing that showed that they had no connection to the accuser in that case, which the prosecutor tried to withhold. If, and you imagine this counter scenario, the Duke lacrosse students had been tried though the Duke campus system, they almost certainly would have been found guilty. Because that evidence never could have been introduced, they couldn’t have had a lawyer, and they likely would have been found guilty and expelled, especially given the racial element of the case and the particular environment at Duke. And so in terms of how many actually innocent students are expelled it is very hard to tell because there are all secret tribunals, unlike the Duke case, where the evidence was exposed to the public, well I’ll give you one good example, which is a case at Amherst. This is a case where two students hooked up. It was a personally tricky case because the female student was the roommate of the male student’s girlfriend, and so there were personal dynamics here. The female student is sending text messages all night, she recognizes that she’s made a mistake, but word gets out, she loses all of her friends, which isn’t much of a surprise, and the guy and his girlfriend breakup, they go on their way. Eighteen months later she files a claim of sexual assault against this guy, claiming that she did not consent to this episode, both of them were drunk at the time, he more so than her. Case goes through the Amherst tribunal. She is asked do you have any text messages that are relevant to the events of that night? She says no. They actually had dozens of text messages which strongly suggested that this event was a consensual event. She goes to the hearing. She talks about text messages at the hearing but she is not asked by anyone at the tribunal to actually produce them. Two months later the guy tracks down these text messages. They show that she’s basically lied throughout the process. He turns them over to Amherst, Amherst gives a twofold response. First they say it’s too late. They say that under their procedures you only have the opportunity to produce evidence of your innocence within seven days of the tribunal finding and after that you are out of luck. But then they say that even if he did produce them in a timely fashion it did not matter because under their system the only written evidence that would be relevant from the accuser was evidence that confirmed the accused student’s guilt. Evidence that impeached the accuser was not what they were looking for. Now the frightening thing about the Amherst process is that Amherst has publicly maintained, this is now in court, that the process worked as it intended. And indeed I think it did, as it intended, according to Amherst. And Amherst procedures are actually more fair than most colleges’ procedures in that they separate between the investigation and the hearing. And then here you have a situation where the guy is actually innocent, is able to uncover evidence to prove his innocence, and that evidence is dismissed.
Seth Barron: It sounds as though Title IX is kind of a double-edged sword in that some men have tried suing the university systems arguing that they are being discriminated against. Could you explain what is going on there?
KC Johnson: Yeah. It’s one of the more troubling aspects of this policy as a whole. So in 2011 when the Obama administration changes policies, they cite Title IX by claiming that most, not all of course, but most victims of sexual assault are women and therefore the existence of sexual assault applies under Title IX because women suffer a disparate impact from sexual assault. But in court filings, you can’t file a disparate impact claim under Title IX. So for the most part, although with two critical exceptions, courts have said since you cannot prove that these people were targeted because they were men, because in theory an accused woman would be treated equally unfairly, you are out of luck. The two exceptions are a case out of Columbia, where in a really important decision the Second Circuit said that’s not the correct interpretation and that in an environment where there is a kind of campus frenzy about sexual assault and where there is strong pressure from the media and from accusers’ groups, and from student activists, to basically convict anyone who is accused that that’s enough to survive a Title IX claim. That went to the Second Circuit. The Second Circuit you know, outlined this standard, which applies only for New York, Connecticut, and Vermont, but nonetheless three states, and very quickly Columbia settled the case after that. And the other was that Amherst case that I mentioned. One of the more interesting decisions at a district court level in the First Circuit, the judge was not eager to side with the accused student on this claim, but he did. And the argument that he made was that the accuser, among other things in that case, was a campus accusers’ rights activist herself. And because of her background the judge argued that you could credibly claim her goal was to use this process to target any man on campus, it just happened to be this guy who got wrapped up in it. Those are the only two important cases where courts have sided with a male accused student. For the most part, men who have filed Title IX claims have lost.
Seth Barron: So it sounds like there’s not a lot of places for men to go to redress their grievances on this. Where are we headed?
KC Johnson: We are headed to no place good, right now. I mean there are around 150 lawsuits that have been filed since the dear colleague letter was issued, almost all of them by men. More accused students have prevailed in these lawsuits than have lost, but often on very narrow grounds where they are able to show that the college didn’t follow the procedures it was supposed to do and if they win they get their disciplinary infraction removed but virtually no money. There have been no important judgements against a college or university where the college was required to spend you know, $800,000 or $900,000 in a penalty. So from the court system, which really does need to be much more active on this issue, there hasn’t been much. You know the best-case scenario if you are accused, you sue, it drags out for two or three years, you prevail, you get the disciplinary infraction removed but you’ve spent tens or even hundreds of thousands of dollars by that point and you’ve put your life on hold for two or three years. The other two areas that I think we need some action, the first is from the Trump administration. You know, it’s been nearly three months. They continue to enforce these Obama-era guidelines. These were issued as guidance documents, not as regulations, by Obama so they could be repealed by Betsy DeVos with the stroke of a pen, but she has thus far declined to do so even though other Obama education guidance documents have been repealed. That would not eliminate the problem but it would alter in particular the legal framework of this because universities frequently claim in courts that oh, the federal government is making us do this, we don’t want to do it on their own, although frequently they do. And then I think the second institution that has really failed on this issue is the media. The coverage of this issue in the mainstream media, especially in the New York Times, has been very, very poor, has presumed the guilt of accused parties, and I think the biggest problem is that the coverage tends not to describe the procedures that colleges use. So a fair-minded reader could see sexual assault or rape and would assume well this must mean the accused student has a lawyer, has a right to exculpatory evidence, has the right to cross-examination, all of these rights we associate with due process in American constitutional law but which don’t exist in the campus tribunals. Eventually, like all witch hunts, this one will fade. But you know, when we get to the point where it is thousands of people who are harmed by this that’s a really big penalty to have to pay.
Seth Barron: Well thank you, KC. This was very illuminating, and it is certainly a major issue that doesn’t seem like it is going away anytime soon. Don’t forget to check out KC’s new book, “The Campus Rape Frenzy,” coauthored with Stuart Taylor, which you can find on Amazon. We would also love to hear your comments about today’s episode on Twitter, @CityJournal with the hashtag #10Blocks. Lastly, if you like our show and want to hear more, please leave ratings and reviews on iTunes. Thanks for listening and thank you again, KC, for joining us.