In 2011, the Obama Administration threatened universities with a loss of funding if they did not adopt a new “preponderance of the evidence” standard in evaluating alleged student sexual assault and sexual harassment. This was, few doubt, a sop thrown to the combative feminists among the Democratic base, those who detect a culture-wide “war on women” and who seek to cast co-eds as imperiled naifs even as the proclaim themselves the equals of men. Within three years this really bad idea has metastasized into the Campus Sexual Assault Witch Hunt Ethics Train Wreck, which would be getting more media attention but for the fact that the world is falling apart in chunks. Among its weirder effects is the proliferation of new “yes means yes” regulations, effectively taking all spontaneity, romance and fun out of sex, all in the service of dubious and cynically employed campus rape statistics. Take this, for example:
“Consider the sexual consent policy of California’s Claremont McKenna College, shared almost verbatim with other schools such as Occidental College in Los Angeles. Paragraphs long, consisting of multiple sections and subsections, and embedded within an even wordier 44-page document on harassment and sexual misconduct, Claremont’s sexual consent rules resemble nothing so much as a multilawyer-drafted contract for the sale and delivery of widgets, complete with definitions, the obligations of “all” (as opposed to “both”) parties, and the preconditions for default. “Effective consent consists of an affirmative, conscious decision by each participant to engage in mutually agreed upon (and the conditions of) sexual activity,” the authorities declare awkwardly. The policy goes on to elaborate at great length upon each of the “essential elements of Consent”—“Informed and reciprocal,” “Freely and actively given,” “Mutually understandable,” “Not indefinite,” “Not unlimited.” “All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting”—think: signing a mortgage—“and a willingness to do the same thing, at the same time, in the same way,” declare Claremont’s sex bureaucrats.”
Cheers, then, are due to 28 Harvard Law professors, who authored and signed a letter protesting Harvard University’s capitulation to the Obama Administration’s blackmail and urging the University to reject the new standards:
- “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following….The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing…The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.”
- “As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.”
- “Harvard has inappropriately expanded the scope of forbidden conduct…by adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law….adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students…”
- “Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance…”
- “Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community…”
- “Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties….
- “We call on the university to withdraw this sexual harassment policy and begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. …The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.”
- “We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.”
Summary: a liberal administration in Washington whistled, a campus already dictated to by political correctness heeled, Harvard administrator backbones dissolved out and sacrificed the University’s and the Constitution’s basic principles as eagerly as less-richly endowed schools that really need the Federal money being used to bribe them to make all male students potential rapists, and some of the best legal minds in the country, conservative and liberal, have shamed Harvard and told it to shape up and be the leader of academia it keeps claiming to be.