A ‘Gentle Mob’ Pushes UVA to the Irrational

Loaded questions — “Have you stopped beating your wife?” — are usually objectionable, but in the case of new rules the University of Virginia just adopted in response to a fraudulent article in Rolling Stone describing a gang rape that did not happen on a night the accused fraternity did not have a party, it is entirely fitting and proper to ask whether the University has stopped victimizing its students in fraternities and sororities. Sadly, the answer is No.

Readers will recall that even as the Rolling Stone article was unraveling University President Teresa Sullivan, with a Cavalier disregard for due process, cancelled all social events at fraternities and sororities until January 9. This was guilt by association with a vengeance, since by then it had become increasingly clear that the alleged crime had not occurred.

The rape scare at Virginia and campuses across the country is reminiscent of the “red scares” of the last century. Yes, there are are real rapes, just as there were real reds, and it is tempting to say rapists have recourse to none of the rights — free speech and association, for example — that reds could claim.

Reliable liberal weathervane Ezra Klein of Vox, for example, defends the “necessarily extreme solution” of convicting the innocent in order to inhibit the guilty.

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

Elizabeth Bartholet, veteran professor of civil rights and family law at Harvard, describes the Dept. of Education’s new policies restricting the due process of students as “madness,” and she and 27 other Harvard law professors signed a statement objecting to Harvard’s compliant policy.

Even the disintegration of the Rolling Stone story produced no caution. “Many people (not least U-Va. administrators),” a writer in the Washington Post argued, “will be tempted to see this as a reminder that officials, reporters and the general public should hear both sides of the story and collect all the evidence before coming to a conclusion in rape cases.” But, she concluded, “in important ways, this is wrong. We should believe, as a matter of default, what an accuser says.”

In this sort of semi-hysterical atmosphere individual rights are in short supply. James Ceaser, who has taught at the University of Virginia for thirty years and is not given to hyperbole, writes that events on his campus led him “to appreciate just how powerful is the force of the crowd. What took place resembled nothing so much as the behavior of a gentle mob, postmodern style.”

Ceaser’s indictment is, if anything, understated, as nicely revealed by a faculty panel on student sexual misconduct held Dec. 3 sponsored by UVa’s Batten School of Public Policy and Leadership. When Emily Renda, project coordinator for sexual misconduct in the Office of the Vice President of Student Affairs (and who was pointed to here as the likely source of the “Jackie” story who used it “to further The Rape Hysteria Narrative”) defended the preponderance of evidence in determinations of student guilty, the Foundation of Individual Rights in Education’s James Cohn responded that this was not fair since “students’ careers, reputations and, ultimately, livelihoods could be negatively affected based on a less than satisfactory amount of evidence.” At that point Allan Stam, Dean of the Batten School, responded that “No one is entitled to attend the University of Virginia; it is a privilege. The community has standards; perhaps they must be articulated more clearly.”

Dean Stam claims that UVa’s Batten School is “the nation’s only school explicitly committed to teaching both evidence-based leadership and rigorous policy analysis [and hence] is positioned to be the national leader in the evolution of leadership training and policy research.” Thus it is both unusually striking and sad that he is so willing to sacrifice individual rights to due process to “community standards.”

Striking and sad, but not really so surprising, since that willingness to sacrifice rights to supposedly greater community needs long preceded the current rape scare. Earlier stirrings of the “gentle mob, postmodern style,” saw campuses that used to pride themselves on being havens for free speech rush to enact “hate speech” rules and regulations designating only certain limited areas as “free speech zones.” And here, making Dean Stam’s point in almost the same words, is perhaps the nation’s foremost philosopher of communitarianism, Harvard’s Michael Sandel, over twenty years ago, whom I discussed and quoted here:

Here lies the far-reaching assumption underlying the diversity argument for affirmative action: admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain. [Sandel, “Picking Winners,” THE NEW REPUBLIC, December 1, 1997, p. 17]

Sandel conflates not having a right to attend the school of one’s choice with not having a right not to be denied admission because of race, just as Dean Stam conflates attendance at UVa as a privilege, not a right, with students having no or limited due process rights to confront accusers, hire lawyers, and to be found guilty of serious sex crimes by nothing less than clear and convincing evidence.

Echoing Prof. Ceaser’s criticism, Robert Turner, who has taught at the UVa law school more than 25 years, and his son Thomas, a third-year (junior) UVa undergraduate, published a stinging OpEd in the Richmond Times-Dispatch calling on President Teresa Sullivan to apologize. “Did U.Va. learn nothing from the 2006 Duke lacrosse team scandal” they asked? Apparently not. KC Johnson and Stuart Taylor Jr., who wrote the book on the Duke scandal, concluded even before this latest chapter that the response of UVa officials, including “the lamentable performance of school President Teresa Sullivan, who has rivaled the shameful indifference to due process shown by Richard Brodhead, who is, alas, still Duke’s president,” has been “worse than at Duke.”)

“More fundamentally,” the Turners conclude, “what message did Sullivan send about basic fairness and the due process of law? Neither of us has any connection with the Greek system, and we understand that they are not popular with some faculty members and administrators. But it is precisely when the alleged crime is so heinous, and the accused unpopular with those in authority, that we must guard against emotion-driven efforts to bypass fundamental due process.”

The Turners sought, in short, an apology for the guilt by association implicit in President Sullivan’s punishing all fraternities and sororities for what she should have known were unfounded accusations against the behavior of a few members of one fraternity. “This sort of thinking,” wrote Max Fisher of Vox, “blaming an entire group for the actions of a few individuals … is the very definition of bigotry.” You may be excused for thinking Fisher was criticizing UVa President Sullivan, but in fact his tunnel vision was looking elsewhere: he was lambasting the “logic” of Islamophobes “that leads French non-Muslims, outraged by the Charlie Hebdo murders, to attack French mosques in hateful and misguided retaliation.”

President Sullivan of course has not apologized. Far from it. Instead, she imposed a new set of rules on fraternities —and to a lesser degree, on sororities — that are reminiscent of the in loco parentis micromanagement of student life that went out of style as the 1950s drew to a close. Examples:

• A minimum of 3 brothers must be sober and lucid at each fraternity function;

• At least one each of the above sober brothers must be present at each point of alcohol distribution and another at the stairs leading to residential rooms.

• Beer may be served, unopened in its original can.

•Wine may be served upon request, poured visibly at the bar by a sober brother.

• Pre-mixed drinks, punches, or any other common source of alcohol are prohibited.

At Tier I events, hard liquor may not be served unless the fraternity hires a bartender employed by a third-party licensed by the Virginia Alcoholic Beverage Control Board in accordance with Virginia law.

These new rules — and the fraternities and sororities supinely accepting them — would be humorous if they weren’t so pathetic. They seem to accept and attempt to regulate behavior that is both illegal — serving alcohol to minors — and even the passage to the upstairs bedrooms. I am impressed, though, with the requirement that a few responsible brothers be not only sober but “lucid.”

I believe these rules reflect a simmering and even seething dislike of the Greek fraternal organizations long harbored by the University of Virginia administration, which on some level welcomed the Rolling Stone story that even though untrue, provided an opportunity to impose stringent new regulations on these bastions of University culture scorned by the politically correct.

A glimpse of that seething disdain was unwittingly revealed by President Sullivan in a careless but telling comment to the Washington Post as the Rolling Stones story was in the process of being shredded by that paper and others: “I’ve been very careful in all my public statements to say that it is not fair to characterize an entire group, that many members of the fraternities are horrified by the allegations.”

Many? Unless she was misquoted, President Sullivan appears to believe that many — or at least some — fraternity members are not horrified by allegations of violent gang rape. No wonder she and her supporters who subordinate individual rights to “community standards” have such scant concern for due process rights.