Of Title IX and God's law

Real Clear Politics, in its daily lineup of front-page links to op-eds, columns and essays, often juxtaposes two divergent views on particular topics, so the reader can do an easy, side-by-side compare-and-contrast.

Such is the case today with two takes on the current state of Title IX.

Let's start with a Baltimore Sun column by a 2015 Johns Hopkins graduate named Eliza Schultz. She must be given credit for taking a cautionary tone rather than a strident one when expressing her concern for how the DeVos-era Department Education is going to treat Title IX:

The Department of Education under Ms. DeVos has signaled plans to discontinuean Obama administration practice of publishing a list of institutions under investigation for potential violations of Title IX. Our complaint prompted the administration to investigate Johns Hopkins and include it on the list updated in August of 2014. It was in part because of that policy of transparency — which went into effect just weeks before we went public with our complaint — that Johns Hopkins had to take full responsibility for, and begin to correct, its own failures. Once its name appeared on the list, administrators could no longer ignore the problem.

Secretary DeVos might also rescind the Dear Colleague letter guidance that made students across the country aware of our civil right to learn in an environment free of sexual violence. The guidance made clear that institutions like Johns Hopkins were required to provide the accommodations survivors needed to remain on campus, to ensure fair processes for both parties and to adjudicate cases in a timely manner. Before the Dear Colleague letter was issued, survivors didn’t know that they had those rights or were entitled to those resources, and so institutions routinely refused to provide them. The result, in many cases, was that students were left with no option but to drop out to avoid further harm.

Ascribing motives to what someone does or does not include in the crafting of a polemical case requires knowing as much as possible about what might be included. So we can't be sure why Schultz so cursorily describes the incident that fueled her interest in this subject:

In 2013, a gang rape was reported inside a fraternity house. The student body remained oblivious to the report — despite campus officials’ legal obligations to disclose it — and hundreds continued to attend the fraternity’s parties in the year that followed. 

Is that all the information we're going to get?

There are indeed more details to be had:

Chaz Haggins, 20, and Ethan Turner, 19, both of Reisterstown, were arrested on charges of rape and sexual assault stemming from the alleged attack at the Sigma Alpha Epsilon party the early morning of Nov. 2.

No attorneys were listed for Haggins or Turner in court records. They were being held without bail at the Baltimore City Detention Center.

Their arrest follows a report by a 16-year-old girl who told police that two men forced her to perform sex acts before they raped her at the party.

Haggins and Turner are not members of the fraternity, nor are they students at Johns Hopkins, university spokesman Dennis O'Shea said.

Rather important little factor in the overall implications of this story, is it not? Kind of mitigates the rape-culture-in-fraternities narrative, wouldn't you say?

And Schultz, per the above observation that she avoids some shrill indictment of DeVos, couches her argument as being that DeVos "may" undermine the relevant Title IX provisions.

But what has DeVos actually done so far, and how is it different from any previous DoE regime?

Last week, Department of Education secretary Betsy DeVos did something extraordinary: after meeting with students who said that they were sexually assaulted in college, she spoke with seven others who claimed that their institutions had found them guilty of sexual assaults that they did not commit. She also met with a group of lawyers and education administrators, including two attorneys who have represented students accused of sexual assault in subsequent lawsuits against their colleges.

Hearing both sides of a controversial issue would seem routine for any policymaker, but that hasn’t been the case for campus sexual assault. Catherine Lhamon, who headed the Education Department’s Office for Civil Rights (OCR) in the Obama administration, refused to meet with groups advocating on behalf of accused students. She even initially declined, in writing, to confer with representatives from FIRE, the nation’s preeminent campus civil-liberties organization. Lhamon’s approach reflected the Obama administration’s strategy of redefining Title IX—the federal law banning sex discrimination in schools that receive federal funds—without soliciting public feedback. The administration made two important policy changes—one in 2011, the other in 2014—not as regulations, which require public notice and comment, but as “guidance” documents. Then, when asked whether the Education Department expected colleges to follow blindly the documents’ demands as if they were regulations, Lhamon said yes.

Ignoring critics allowed Obama’s OCR to avoid addressing the myriad dubious assumptions, and in some cases outright myths, upon which it relied to construct its one-sided Title IX policy—especially the premise that colleges could dramatically erode due-process protections for accused students without just as dramatically increasing the chances of wrongfully finding them guilty. Up to now, the OCR mandate that has attracted the most attention is the one letting colleges use the lowest standard of proof (preponderance of the evidence) in campus sexual-assault cases, even as the schools remain free to use a higher standard (beyond a reasonable doubt) for students accused of trivial offenses, such as petty vandalism. But other OCR stipulations, such as its 2014 assertion that allowing cross-examination of accusers “may perpetuate a hostile environment”—thereby violating Title IX protections—have had an even stronger negative effect. Fearful of negative media or OCR investigations, colleges have scrambled to create disciplinary systems in which students accused of sexual assault are presumed guilty and denied the tools to prove their innocence. As a California appellate judge remarked during oral argument in a due-process lawsuit: “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”

And, sorry, Ms. Schultz, but Title IX really isn't a remedy for your concerns:

George Mason University law professor David Bernstein recently noted that, despite the Obama administration’s reading of the statute, “Title IX itself doesn’t actually speak to specific procedural protections.” More broadly, according to Bernstein, it requires an “aggressive interpretation of Title IX to think it speaks to student-on-student sexual assault at all.” 

 And calling upon it to provide such a remedy can do real damage to innocent people's lives:

Nikki Yovino was a student at Sacred Heart University in Fairfield, Conn., last fall when she accused two of the university’s football players of raping her at a party. The football players both admitted they had sex with Yovino, but said it was consensual. Police say Yovino subsequently confessed she had fabricated the rape claim:

“She admitted that she made up the allegation of sexual assault against (the football players) because it was the first thing that came to mind and she didn’t want to lose (another male student) as a friend and potential boyfriend. She stated that she believed when (the other male student) heard the allegation it would make him angry and sympathetic to her,” the affidavit states.

Yovino, now 19, was charged with “charged with second-degree falsely reporting an incident and tampering with or fabricating physical evidence. The tampering charge is a felony punishable by up to five years in prison.” Last month, prosecutors offered her a plea bargain of two years in prison, followed by three years’ probation. In a court appearance Friday, however, Yovino blamed her crime on mental illness:

Nikki Yovino filed an application in court Friday saying she’s suffering from a psychiatric disability, The Connecticut Post reports.
The 19-year-old from South Setauket, New York, will undergo a psychological evaluation. A judge will decide whether she qualifies for a pretrial diversionary program. If she qualifies and completes that program she could have the charges dismissed.
Prosecutors say they’ll contest Yovino’s request. . . .

Yovino’s motive for lying — fear that she’d lose a prospective boyfriend if he found out about her romp with two football players — is reminiscent of the motive for the rape hoax at UVA, where Jackie Coakley tried to catfish a guy she liked by inventing “Haven Monahan.” Coakley’s dramatic fictional gang-rape at a frat house, a desperate attempt to gain sympathy, became a national story in 2014 amid the campus “rape culture” hysteria ginned up by the Obama administration and its feminist allies. A major factor in that hysteria was the Department of Education’s Office of Civil Rights (OCR) using Title IX to threaten universities for allegedly failing to punish sexual assault. This witch-hunt frenzy resulted in male students being falsely accused of rape and denied their due-process rights in campus kangaroo-court disciplinary proceedings.

Since Trump’s election, Education Secretary Betsy DeVos has sought to curtail the OCR’s witch-hunt, which Scott Greenfield says led to “flagrant discrimination against males” on campus. Feminists have demonized DeVos for trying to end this anti-male discrimination. DeVos was branded a “powerful handmaiden to a hegemonic white supremacist, capitalist, patriarchy” by University of Kentucky lecturer Marta Mack-Washington. But the real problem on university campuses is not capitalism or patriarchy, it’s a culture of irresponsibility fueled by identity politics and “social justice” narratives of oppression and victimhood.

I gave some thought to putting the word "innocent" in quotes. Certainly, from a technical standpoint, that is what the football players were.

But, you see, there is another dimension to this, one that is pretty much off-limits for discussion in 2017 post-America: the blot those football players, and indeed, anyone engaging in sex outside the parameters established by almighty God, have entered into the divine record book. (It probably bears mentioning that it's one I live with daily.)

It would be off-puttingly corny to mention, in a context like this, the relative absence of these kinds of problems in the long-gone era of living-unit curfews and house mothers. But those conventions were based on an unflinching recognition about some truths concerning human nature.

Ditto a comparison of pop-music lyrics from such an era with those of today. But let's consider it anyway.

Kathryn Jean Lopez at NRO observes the inescapable ubiquitousness of pop-culture coarseness:

But first: Have you noticed that it’s near impossible to go anywhere without noise? I find — in Ubers, in restaurants, wherever there is any kind of wait or chance to think — it tends to be one of three refrains, see if they sound familiar:

I, I love you like a love song, baby. I, I love you like a love song baby. . . . And I keep hitting re-peat-peat-peat-peat-peat . . . only to break into another triplet of I, I love you like a love song baby. 

Enough with the re-peat-peat-peat. Then fast forward to Ed Sheeran’s “love song” of the day; I’m beginning to think there’s never a moment where it’s not playing somewhere:

I’m in love with the shape of you / We push and pull like a magnet do / Although my heart is falling too / I’m in love with your body

And finally, back to Selena Gomez, who issues a protest note:

I’m so sick of that same old love, that sh**, it tears me up / I’m so sick of that same old love, my body’s had enough / Oh-oh-oh (that same old love) . . . / I’m so sick of that same old love, feels like I’ve blown apart. Some “love song.”

Then consider the inherent tension between desire and self-restraint that form the basis for such songs as "Let It Snow," in which the couple snuggling by the fire acknowledges that a moment will come when there's a final good-night kiss and one lover drives home. In the doo-wop era, one could still find such tension - witness "Goodnight Sweetheart" by the Spaniels. Even in the Brill Building era, Goffin and King, in the song "I'm Into Something Good," had the protagonist walking his new thrill home and asking to see her next week.

In 1966, long-haired guitar twangers The Standells were pushing the boundaries a bit by acknowledging the latent rascal in the boy students of Boston-area campuses:

Frustrated women / have to be in by twelve o'clock / but I'm wishin' and a-hopin' / that just once those doors weren't locked.

1966 was also the year that the National Organization for Women was founded. The sexual revolution was well underway as well. Certainly by 1973, when I entered college, the atmosphere was a confusing mix of some kind of newfound "equality" on the part of females and a not-too-well-disguised licking of chops at the unprecedented opportunities for sybaritic abandon on the part of males.

How long did anyone think it was going to take for it all to lead to false accusations of rape, as well as an uptick in real rapes?

The point, once again, as it usually turns out to be, is that there is not court ruling, no federal-agency regulation, no campus "diversity" program that can substitute for universal acknowledgement that divinely handed-down moral codes.

Men and women are different. They derive different kinds of gratification from sex. For this reason, God created marriage and family, so that lovers might be able to come together in an atmosphere of trust and commitment, and bring fort h children who live in a world where real humanity is the norm and every interaction between people does not require tiresome and dehumanizing negotiation.

If you want a world that's not quite so cold and barren, start with looking into how God wants it to be.