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Mainstream Ideas, Fringe Opposition

eye on the news

Mainstream Ideas, Fringe Opposition

A judicial nominee comes under fire for undergraduate writings on sexual assault—though her views from 25 years ago are consistent with today’s statutes and rulings. January 18, 2019
Politics and law

Brett Kavanaugh’s elevation to the Supreme Court opened a vacancy on the nation’s second most powerful court, the U.S. Court of Appeals for the D.C. Circuit. Last November, President Trump nominated to the post his regulatory czar, Neomi Rao, a highly regarded legal academic and former professor at George Mason Law School. The selection of a woman of Indian descent to a position that served as a stepping stone for one-third of the current Supreme Court was particularly notable, given criticism of the Trump administration for lack of diversity in appointments.

Rao has come under attack, though, for an op-ed that she wrote as a Yale undergraduate. According to an exposé in BuzzFeed, Rao used “inflammatory language” to discuss date rape (and in other op-eds discussing hot-button issues). Alliance for Justice, a leftist judicial watchdog coalition that helped destroy Robert Bork’s Supreme Court nomination in 1987, first brought the writings to attention; the organization’s president, Nan Aron, denounced Rao for “comments hostile to sexual assault survivors.”

Yet, in her college op-ed, Rao asserts that “a man who rapes a drunk girl should be prosecuted.” She also contends that, in a case where both students were very drunk, “Clearly, if the male student forced the woman to have sex against her will, then he should be held responsible.” Demanding the prosecution of a student’s rapist is hardly a sign of hostility to survivors, as Aron alleges.

The BuzzFeed reporter, Zoe Tillman, focuses on two of Rao’s themes in her essay. The first notes the “choice” made by female students who get very drunk, counseling that “a good way to avoid a potential date rape is to stay reasonably sober.” The second concerned moral agency. As Rao put it: “Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility.”  

Finding fault with Rao’s point about treating intoxicated male and female students the same way is odd, given that multiple court decisions—from judges not regarded as “hostile to sexual assault survivors”—have addressed this issue. Under Title IX, colleges must treat male and female students identically before campus rape tribunals—but they consistently fail to do so, and as a result nearly 400 accused students have taken their schools to court since 2011, when the Obama administration issued its Dear Colleague letter calling for more vigorous investigation of campus sexual-assault claims. Judges increasingly have held universities to account when their disciplinary actions have suggested that only male students should be held responsible.

For instance, in 2014, a female student filed a complaint with Duke, claiming that she was too intoxicated to give sexual consent to her male partner; after Duke found the male student guilty, he sued. In a court hearing, his lawyer asked an obvious question: since both students were heavily intoxicated, did they assault one another? A Duke dean said no. “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” testified the administrator, effectively admitting that Duke was in violation of Title IX. The judge granted a temporary restraining order, and the case eventually settled. The following year, an Amherst College disciplinary panel conceded that while a female accuser, who had initiated a sexual encounter before claiming to have withdrawn consent, was only intoxicated, the accused male student was likely incapacitated—yet it found the male student guilty anyway, on grounds that his failure to remember what happened gave his accuser more credibility. U.S. District Judge Mark Mastroianni held that the resulting lawsuit offered a plausible claim under Title IX because Amherst “certainly learned that [the female student] may have engaged in sexual activity with [the male student] while he was ‘blacked out’ . . . [but] did not take even minimal steps to determine whether [he] should have been viewed as a victim under the terms of the [college] Policy.”

Courts have continued to recognize that Title IX’s promise of equity demands intervention when universities deny fair treatment in cases where both accuser and accused are heavily intoxicated. Judge Karen Moore, writing for the Sixth Circuit, noted that a university might be liable under Title IX if it did nothing after learning that an intoxicated female accuser had sexual contact—even just kissing—with a male accused student who was “so intoxicated that he could not remember the events of the night the next morning.” (In that case, at Miami University, the accused student failed to establish a pattern of university indifference.) In the most recent such decision, U.S. District Judge Rebecca Goodgame Ebinger denied Drake University’s motion for summary judgment after the university, in effect, treated only the male student as morally responsible for an incident of heavily intoxicated sex. The ruling held that “a reasonable jury could find [the male student] was dissuaded from filing a complaint” by Drake officials, even though he told an administrator that he was so drunk as to have been incapable of consenting to sex.

Barack Obama nominated Mastroianni and Goodgame Ebinger, while Bill Clinton nominated Moore. Would the Alliance for Justice consider their opinions “hostile to sexual assault survivors,” too?

Last year, former Above the Law editor David Lat offered some good advice: “Collegiate scribblings from decades ago should have no bearing on one’s fitness for public office, and making an issue of them is bad for the country.” It is particularly wrongheaded to suggest that Rao’s college-era writings, at least those concerning campus sexual assault, could disqualify her from judicial service, when her point of view from 25 years ago aligns both with statute and today’s mainstream opinion.

Photo by Alex Wong/Getty Images

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