Washington Monthly - September/October 2015 - 69

threatened to bring into disrepute its own crucial effort to rid campuses of sexual violence and harassment. B est known for its effects in promoting women's sports, Title IX in fact prohibits all forms of sex-based discrimination-including sex-based violence-on campus. But court decisions have made it very difficult for individual targets of discrimination to enforce that prohibition. And the Department of Education historically has not used its enforcement authority aggressively against sexual harassment and violence. All of that has changed in the Obama administration. In administrative pronouncements issued in 2011 and 2014, the department's Office for Civil Rights (OCR) emphasized and elaborated on schools' obligations to prevent sexual harassment and assault. As of April 2015, the OCR was investigating more than 100 schools regarding their handling of cases involving sexual violence. Critics have leveled a growing bill of particulars against the new enforcement efforts. In October 2014, twenty-eight professors at Harvard Law School-representing positions across the political spectrum-signed an open letter opposing Harvard University's new procedures for handling complaints of sexual misconduct. The faculty members alleged that those new procedures, prompted by the Department of Education's actions, "lack the most basic elements of fairness and due process" and "are overwhelmingly stacked against the accused." These and other critics have focused, in particular, on the procedures' requirement that university adjudicators apply only a preponderance-of-the-evidence standard for determining whether an accused individual is responsible for sexual misconduct. Under that standard, which generally applies in civil suits in the United States, the defendant is liable if the adjudicator determines that there is a more than 50 percent chance that the defendant has committed the act with which the plaintiff charged him. That standard is a far less stringent one than the beyond-areasonable-doubt requirement that applies to criminal prosecutions. Yale Law School professor Jed Rubenfeld argues that the application of the preponderance standard makes "[m]istaken findings of guilt" a "real possibility." Echoing the views of many administrators, he suggests that campus procedures for handling sexual assault claims should be designed to channel those claims to the criminal justice system, where presumably expert investigators and prosecutors can handle them properly. Other critics have focused on perceived excesses in universities' investigations of alleged harassing remarks by faculty and students. Northwestern University's treatment of professor Laura Kipnis has served as a prime example. A cultural critic, Kipnis published a widely noted essay in February 2015 arguing that universities' recent moves to prohibit sexual relationships between faculty and their adult students had gone too far. In the course of her essay, Kipnis discussed a recent case at Northwestern in which an undergraduate student accused a professor of unwanted sexual contact and charged that the university's sanction (denying the professor a raise and stripping him of his named chair) was insufficient. Without naming any names (though linking to a previous news article that named the professor), Kipnis expressed skepticism of the student's claim and called it "a mess" and "melodrama." In response, two students claimed that Kipnis's essay illegally retaliated against them for complaining about violations of Title IX. The university hired a law firm to investigate that complaint. As Michelle Goldberg of the Nation reported, Kipnis "was forced to submit to hours of questioning about her essay and the ideas underlying it." Northwestern closed the case only after Kipnis herself published a new essay about what she called her "Title IX Inquisition," which provoked widespread criticism of the university's conduct. A major, highly publicized government enforcement initiative on the high-profile topic of campus sexual violence was bound to lead to an overreaction by university bureaucrats pursuing maximal risk aversion. The Department of Education should have seen that coming. And in the most recent case to draw critics' attention, the Louisiana State University fired an award-winning tenured professor of education for engaging in an alleged pattern of harassment. The professor, Teresa Buchanan, points to a faculty report that "cited three 'notable' instances of vulgarity on Buchanan's part: saying 'F*** no' repeatedly in the presence of students, using a slang term for vagina that implies cowardice and telling a joke that the quality of sex gets worse the longer a relationship lasts." Buchanan has announced that she will sue the university, and the American Association of University Professors has expressed support for her case. LSU contends that Buchanan's offenses went well beyond simply saying "Fuck no" in class, and the matter will no doubt be settled in court. T he critics have a point about these cases. The Harvard sexual misconduct policies do raise troubling fairprocess concerns, Kipnis's "inquisition" was inapproWashington Monthly 69

Table of Contents for the Digital Edition of Washington Monthly - September/October 2015