Is Yale Using Title IX to Trump Free Speech?

Yale runs one of the strangest systems of handling sexual assault (“economic abuse” has been counted as a sexual attack, and proceedings can start without the alleged victim’s consent) so its semiannual  reports on  the subject are well worth studying.

I’ve analyzed each of the previous six, all done as part of a settlement with the federal government. In the most recent offering from Yale deputy provost Stephanie Spangler, which covers events on campus in the last six months of 2014, Yale’s “intimate partner violence” category has made its return, with two cases among undergraduates. But Yale has modified the definition, to exclude the almost-comical claim in its old policy that “economic abuse” of a roommate could somehow be characterized to the outside world as the equivalent of a sexual assault.

The report also suggests the number of reported sexual assaults declined from 29 (in the previous Spangler report) to 13 (in this one). Yet Spangler seems eager to downplay what would seem to be a very positive finding. According to Spangler, “It remains challenging to identify meaningful statistical trends from the information in the reports. The reports capture information only about complaints that have been brought forward; without additional information about unreported incidents of sexual misconduct on our campus, it is challenging to draw conclusions about patterns and trends.” You’d think a university administrator would be delighted by news that her campus is currently safer than it has been in the past.

Instead, Spangler seems almost giddy at something coming along that will suggest that more sexual assaults are occurring at Yale. She reveals that Yale will be joining other universities in participating in a campus climate survey championed by the Obama administration and Senator Claire McCaskill (D-Missouri). Spangler explains that the survey “is currently being developed by distinguished sexual violence researchers, with input from campus experts in institutional assessment, student life, and sexual violence prevention, [and] will be distributed to all enrolled Yale students in the spring.” Note that the survey designers don’t include any civil libertarians or even people identified as having law enforcement experience. It’s not too hard to figure what kind of survey this will be.

The Report

Six Yale undergraduates, and four graduate students, were accused of some form of sexual assault between July 1 and December 31, 2014. (The other three cases involved one staff member and two non-Yale defendants.) I say “some form” because the report (as always, at Yale) “uses a more expansive definition of sexual assault” than that outlined by the federal government or local law enforcement.

Of the 13 sexual assault cases, none were handled by the Yale Police Department. In the early Spangler reports, sexual assault cases often went through the “informal” process, the Orwelllian arrangement that affected, among others, former Yale quarterback Patrick Witt. Operating under the premise that the accuser should have maximum control over affairs, the accused student has no right to present evidence of his innocence (in Witt’s case, he wasn’t even informed of the specifics of the charges), meaning that a conviction is almost certain. On the other hand, the accused student can’t be expelled, and the result is supposed to be (though in Witt’s case, was not) kept confidential. In the most recent reports, Yale had dropped the informal procedure in sexual assault cases—but it was back for early 2014, and in the most recent report, one case was handled informally. The case involved a graduate student, and the accused student (naturally) was treated as guilty, subjected to counseling from the head of the University-Wide Committee on Sexual Assault (UWC). He also “resigned from a student leadership position.”

Four cases immediately went through the formal complaint process; eight others started with the Title IX coordinator (who often, on her own initiative, referred the issue to the formal complaint process). In a formal complaint at Yale, the accused cannot have an attorney as part of the process; the accused is branded a rapist based on a 50.01 percent finding from a panel specially trained panel; and the accused has no right to cross-examine the accuser.

Of the “sexual assault” cases that went through the formal resolution process, only one ended with a conviction and expulsion—suggesting that only one of the thirteen instances in the report involved what would commonly be understood as rape. (Other punishments for students found culpable of sexual assault ranged from short suspensions to probation; it’s inconceivable that Yale would keep any of these students on campus if they had actually committed a rape, as opposed to being found guilty of a “more expansive definition.”) Of course, there’s no way of knowing whether even this one student should have been found guilty; the Spangler Report presents no specifics, and Yale’s formal procedures are tilted so heavily in favor of the accuser that a fair result is almost impossible.

The First Amendment

In a first, the current Spangler Report suggests that Yale is now using Title IX to threaten students’ First Amendment rights on campus. Two graduate students complained about what the Spangler Report terms “inappropriate remarks about them [that] had been published in a student-run newsletter.” (There’s no indication from the report that the remarks were libelous.) Rather than to instruct the complaining students about the value of a free press, the Title IX coordinator consulted with an unnamed administrator. That administrator, in turn, called in the newsletter publishers for a private meeting—at which these student journalists were “counseled . . . regarding appropriate content.” That no one at Yale appears to have been troubled by this behavior speaks volumes at how the university now views civil liberties.

Dismissing Due Process

The Ivies have a pattern of punishing innocent students in sexual assault cases, to which Yale has now contributed: one student was found not-culpable even after going through the formal complaint process, but nonetheless was “referred for training on sexual consent.” Again: the university had dismissed an allegation that the student had any problems regarding “sexual consent.” At least three other students were referred to various forms of counseling by the Title IX officer—even though they hadn’t even been charged with wrongdoing. In these instances, the coordinator acted solely on the basis of allegations from female Yale students.

Then there’s a troubling case of a student whose degree has been withheld until the end of the year—a move that presumably has severe economic consequences for the student (a reminder, yet again, of the absurdity of the argument offered by anti-due process activists that outsiders needn’t worry about the minimal effects on the accused if a college deems him a rapist). In this instance, a female undergraduate initially claimed that the accused student “made unwanted advances toward her.” She delivered her concerns to the Title IX coordinator.

Despite oft-heard rhetoric about the need to respect the rights of “victims” regarding the filing of charges (a line of argument most prominently advanced recently to oppose a sensible Virginia bill to require reporting of campus sexual assault allegations to police), the Title IX coordinator, not the accuser, brought the complaint to the UWC. The accused student then was found guilty not of unwanted advances—the original charge—but of improper “touching of a sexual nature.” And, according to the Spangler Report, this behavior constituted a “sexual assault.” It remain unclear whether the accuser even testified in the hearing.

To review: this student was (a) brought to a campus trial by actions of a Yale bureaucrat, not the accuser; (b) convicted of an offense different than what the accuser, who played no role in bringing the charges to UWC, had alleged; and (c) branded guilty, for life, of a “sexual assault,” even though the (expanded) offense doesn’t appear to fit the commonly understood definition of the term. Because of the delayed degree, the student would either have lost whatever post-graduate job he had lined up, or removed from any graduate program to which he had obtained admission.

Finally, the Spangler Reports have a long history of Kafka-like inquiries, in which an accused student is investigated for unspecified crimes committed against unspecified persons, often as a result of allegations filed by figures other than the alleged victim of the offense. This report’s entry involves a male undergraduate student. A “third party” informed the Title IX Coordinator that the student had “made unwanted advances toward female YC students, whom the reporter would not identify.”

The case, as they say, “is pending.”