Laura Kipnis, a Professor of Film Studies at Northwestern University who endured an extensive Title IX investigation at her own university for writing an article, gave the keynote address at a conference on Theorizing Consent last evening at the University of Texas at Austin. The Title IX investigations sweeping across U.S. campuses are more pervasive than most people on campus realize, and the range of things for which one can be investigated is startlingly broad. Kipnis described them as part of a “secret war against the professoriate.” But students are the ones chiefly caught in the crossfire.
That Title IX investigations generally do away with the presumption of innocence, the right to face your accuser, and other aspects of due process is well-known. Kipnis discussed other aspects of the “inquisitorial model” of these investigations that are not so well-known:
- A lack of information: Most targets of investigation are not told who is accusing them or what the charges are. They are called in to an office for a meeting without any information and thus without any opportunity to prepare. The investigating official then asks a series of vague questions, conducting a fishing expedition to try to get the accused to say something that might be damaging in light of the undisclosed charges. Many never receive any charges in writing.
- Improvised procedures: It is up to each university to establish its own procedures for investigating complaints. Those procedures are evolving rapidly, and often change at the whim of the investigating official. Will you have an opportunity to see charges in writing? Bring an attorney to a hearing? Have a hearing? Get to say anything in your defense? Introduce any witnesses? Who knows? It’s up to the whims of the Title IX officer.
- Improvised standards: What does Title IX require? What does it prohibit? The law itself is vague, and each investigating official makes up criteria for applying it on the fly. John Locke said that freedom under government is to have settled, known law, fairly administered by an known and impartial judge, and to be free to act where the law is silent. Under Title IX as currently applied, students and faculty members face changing and largely unknown rules, administered haphazardly and often discriminatorily by a shadowy bureaucracy with its own vested interests, across a vast and protean range of their lives. If you think the law applies only to allegations of rape on campus, think again. It has been applied not only to writing an article but to uncomfortable eye contact, criticism of ex-girlfriends, and the balance of readings on course syllabi. (Better watch those bibliographies!) People have lost their jobs for having dated someone who later became an adult student at the university. They have been found guilty for violating codes of conduct that were not yet in effect when the conduct took place. They have been expelled for things done to them while they were unconscious.
- Absurd, subjective methodologies: One Title IX investigator said that she purposely summoned people under investigation to her office without giving them any information about the nature of the complaint against them so that she could see the look on their faces when they heard the allegations. Watching their faces told her all she needed to know, she was convinced, about guilt or innocence.
- Gag orders: Those under investigation are routinely ordered not to tell anyone about being under investigation, on pain of facing a further charge of retaliation—even if they refrain from naming their accuser (whose name they might not be told in any event). Even saying “I’m no longer under investigation!” after being exonerated can be enough to trigger a further investigation.
- Retroactive withdrawal of consent: One of the most chilling features of Title IX investigations is the ability of the complainant to withdraw consent retroactively. Many charges are brought months or even years after the fact against someone who thought everything that had happened was fully consensual. But someone can be penalized—sanctioned, fired, expelled, etc.—for conduct that someone later decides to have been against her consent, even if she gave no indication of that at the time and in fact gave enthusiastic expressions of consent.
- Third-party complaints: Many complaints are brought not by the alleged victim but by someone else—a friend, a social justice warrior, or a Title IX official—even though the supposed victim denies being a victim and insists that she consented to everything that took place.
- Qui bono? Whose interests are being served by this inquisition? Those of the Title IX investigators, obviously, who see their power and their bureaucratic dominions grow, but also the administration more broadly. Vague, shifting, and arbitrary standards give administrators enormous leverage over students and faculty.
- Paranoia: The result is a campus climate of paranoia. Almost anything you do or say could be the basis for a Title IX investigation.
The industry that Title IX has spawned includes not only the enforcement bureaucracy but an education and training bureaucracy that shows just as little interest in the truth. They ignore the link between sexual misconduct and binge drinking on campus, even though everyone involved knows that alcohol plays a large role in the hookup culture, because they insist that doing so constitutes blaming the victim. They similarly resist self-defense or assertiveness training—which are known to work—in favor of methodologies that appear to make no difference and may even make the problem worse. They insist on statistics—1 in five women are sexually assaulted while in college, only 2% of rape allegations are untrue—which have little basis and which in fact are almost certainly false.
The 2% number, Kipnis pointed out, shows how little interest Title IX advocates have in the facts. It comes from Susan Brownmiller’s Against Our Will. She did no statistical analysis herself, but cited a speech given by a New York judge. He got the number from a study done by a police squad, with no statistical training, in one precinct in New York City! The FBI puts the number of false rape reports at 8% of those brought to the police. Among complaints of rape, sexual assault, sexual misconduct, unwelcome hand-holding, inappropriate eye movements, publications causing discomfort, and the like brought before campus tribunals, by third parties as well as alleged victims, the percentage of baseless complaints is undoubtedly far higher.
As for the famed one in five number, the Bureau of Justice Statistics estimates that the incidence of sexual assault among college women is 6.1 in 1,000.
Kipnis’s main theme was that the current movement on campus places no responsibility whatever on potential victims, undermining their sense of agency instead of encouraging them to stand up for themselves and say no. The assumption tends to be that men are agents, but women aren’t. Men do things; women have things done to them. That assumption is sexist. It’s wrong. And it’s hard to imagine an assumption more damaging to women.
By now you may be thinking, “Wow! I’m glad I’m not on a college campus anymore!” Don’t think you’re safe. If the American Law Institute has its way, this will be the law of the land soon enough. I’m sure President Hillary will make it a top priority. I await the cover of Time announcing, “We’re all sex offenders now.”