Here we are.
After a brief recovery Friday the 16th, an early morning seminar for D.C. Bar admittees yesterday crashed me entirely, which is why there were no posts. I almost didn’t make it to the end of the program, which surprised and alarmed me; the last few minutes were excruciating. But I have never cancelled a seminar, and when I do, it will be because my metaphorical chips are about to be cashed. Those who know my theatrical history will recall that I damaged my lungs in college staging and performing a professional dinner theater show six days a week (during final exams) while I was suffering from a serious bronchitis attack; that I refused to cancel in-door performances of The American Century Theater (RIP) during snow storms, and one out-door performance during an electrical storm. Not being able to do my job and fulfill my responsibilities due to illness or injury absolutely crushes me (like many of my obsessions, this one is partially Dad’s fault: he refused to take sick days), and keeping Ethics Alarms current is the least burdensome of my responsibilities.
Once again, I apologize.
1. More apologies, Arlington High School Dept.: My ill-timed illness is also keeping me away from my 50th high school class reunion. I intended to make it, and wanted to make it: I had a wonderful time in high school, and met many of the best people I have ever known while I was there. Past reunions have been somewhat depressing for me: seeing people I remember vividly as young, vital and full of excitement for the future looking as old as they are and often feeling defeated by life makes me feel old, and the inevitable sad cases who feel he or she has to boast about successes and wonderful kids caused me stress as I barely controlled the urge to tell them off. Nonetheless, I regard attendance at such milestones as an obligation to the past, a demonstration of respect for where we have come from and the people and institutions that got us to where we are. And, of course, the more old friends who attend, the better the experience is for everyone. I wish there was a way to let my classmates know that I still think about them and care about them. This blog isn’t it.
2. Who made bad losers in politics respectable? When public trust in democratic institutions reached some yet-to-be-determined tipping point, a democracy is finished. Once, not too long ago, the tradition in American politics was that the defeated candidate—the office didn’t matter, nor did the margin of victory—conceded the race in a timely fashion, congratulated his or her opponent, and vowed to help and assist the victor as much as possible. This not only modeled graciousness and good sportsmanship, but also protected the system. Now every election shows this healthy model being further pushed into cultural obscurity, with a new low being established in Georgia last week, when the loser of the governor’s race, Stacey Abrams, blamed her loss on a failure of democracy, refused to officially concede while admitting that she had lost, and announced a lawsuit alleging that Governor-Elect Brian Kemp and Republicans had tampered with the election without offering any proof or evidence. Well, maybe this wasn’t the new low; it would be hard to top Roy Moore.
3. The new Title IX rules. The Education Department finally released new guidance on how Title IX, the federal statute that forbids sex and gender-based discrimination in public schools and colleges, should be enforced. This was desperately needed after the Obama Administration had muddled and corrupted the process with blatant gender bias and its infamous “Dear Colleague” letter, creating a culture that undermined free expression and due process on college campuses and due process rights for students accused of sexual misconduct.
The new rules reject the single investigator/judge model of sexual misconduct adjudication. Universities are now required to provide a separate individual or group, to determine an accused student’s guilt. Both the accuser and the accused will be able to appeal the outcome of an adverse Title IX decision. The revised make it clear that Title IX is only infringed when conduct is “severe, pervasive, and objectively offensive.” That’s still broad, but will eliminate prosecutions for controversial or delectably offensive speech, or mere political incorrectness. Cross examination of complainants and witnesses is no longer discouraged, as under the Obama standards. (Questioning an alleged sexual assault victim was regarded as too traumatizing. The new rules state that neither the accuser nor the accused need to be physically present in the same room, but their attorneys or representatives must be allowed to submit questions on their behalf for the other party to answer. The preponderance-of-the-evidence standard that the Obama “Dear Colleague” suggested, in which the accused can be found guilty if there is 51% likelihood of culpability, is no longer mandatory. Universities may use the more challenging (and fairer) clear-and-convincing standard, which requires greater certainty. However, the new rules require that a university must use the same standard for Title IX adjudications as it does for other non- Title XI matters, such as accusations involving academic misconduct. Good rule!
The new guidelines provide a neat ethics test for individuals, politicians and advocacy groups. Critics of these rules, which only restore due process fairness to the rigged anti-male kangaroo courts the Obama administration encouraged, signal their bias For example, NARAL, the pro-abortion organization, tweeted Thursday that “a new rule from Betsy DeVos would require universities to allow accused sexual abusers to cross-examine and re-traumatize their victims. This is absolutely sickening.” Note that an accused male student is assumed to be guilty under this interpretation. It has not yet been established, under the new rules, that an accuser is a “victim.” Moreover, NARAL deliberately misstates the rule—because lying to stir up anger and confusion is what activists do, and that’s what’s “sickening”—the alleged abuser does not personally handle the cross examination of the accuser.
4. Again: the ACLU is no longer the ACLU, so we need an ACLU. Ethics Alarms already pronounced the ACLU dead and buried for all practical purposes here and here, the last being its stunning rejection of the presumption of innocence and due process regarding the accusations of sexual misconduct regarding Brett Kavanaugh. If there was any doubt, now we have the organization, once the non-partisan champion of civil rights and their protection, condemning the new Title IX standards because “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.”
Based on what has gone before, this complete reversal of traditional ACLU values should not shock anyone, but “Reason’s” Robby Soave had apparently not given up on the organization’s integrity toward its mission. Now he sees the light, writing in part,
I am astonished to see the ACLU take the position that a government policy gives an accused person too many rights, especially when these rights are things the ACLU has generally supported. (In other words, they are not weird new rights invented out of thin air. These are standard protections that regrettably were not applied to campus sexual misconduct adjudication during the Obama years.)
The Title IX reforms … greatly strengthen due process protections for students accused of sexual misconduct, and they relieve colleges of the burden of investigating suggestive speech that should be permissible on free speech grounds…Keep in mind that the new rules—while a significant improvement—are not radical. In fact, they adhere to the principles set forth by federal “rape shield” laws, which protect victims from having to discuss their past sexual relationships during adjudication hearings….
I didn’t expect an honest appraisal of the new rules from the likes of NARAL. But I did figure the ACLU might appreciate some of the nuances involved here: Protecting women from sexual misconduct is important, but so are liberal principles of justice, fairness, and the presumption of innocence. The ACLU recently broke with longstanding tradition to oppose the nomination of Brett Kavanaugh to the Supreme Court—and ran ads saying that Kavanaugh’s denials of sexual impropriety should be dismissed, since other accused rapists like Bill Cosby and Harvey Weinstein also denied the charges against them. Between that and this, principles of due process and the presumption of innocence seem to be falling off the organization’s radar as things that should be defended, at least when the person who needs these protections lacks sympathy from intersectional progressives.