At present, this is clearly one of the significant issues in the culture wars. My observation is that the “left” has made significant progress in recent years, spurred by the Department of Education’s actions that have led many colleges to change their standards and by significant discussion in the media about the issue. The most recent sign of the left’s progress has been the passage of the California affirmative consent statute (about which I previously blogged here and here).
Yet, it is my impression that push back against these policies has begun to grow. This has been due in part to the reports of a variety of lawsuits, some of them successful, against colleges which appear to have treated male college students without due process. But it is also due to a statement signed by 28 members of the Harvard Law faculty condemning the Harvard procedures as unfair. They wrote that:
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 lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.
■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.
Harvard has inappropriately expanded the scope of forbidden conduct, including 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.
This is pretty much the criticisms that people on the right have made of the new procedures and standards. What is startling, though, is who these faculty members are. The Havard Law faculty members who signed the statement are largely drawn from the left, including liberals like Martha Field and leftists like Duncan Kennedy. Notably, few members of what passes for the right on the Harvard faculty were signatories.
What accounts for this? Why are these liberal and leftwing faculty members bucking the left wing cause of protecting college women from sexual assault? While there may be many explanations for the various individuals involved, I believe that one part of the explanation is generational. The leftwing members of the faculty grew up and developed their views at an earlier time. In that period, biased standards and the failure to accord due process were hard to justify for whatever the cause. While people would sympathize with the victims of sexual assault, they would not allow that sentiment to permit injustice. And perhaps they would emphasize that having the rights of ab autonomous person requires that one take some responsibility for one’s own behavior and safety.
I don’t want to put words in other people’s mouths, but that is how I would understand these actions. Political positions on one end of the spectrum often change over time, leading to conflicts between members of the same political group. Conservatives, who in the past, followed Robert Taft and opposed foreign involvements, came to be more interventionist under Presidents like George W. Bush. Some of the earlier conservatives rejected the views of the later interventionists. And today there are conflicts between those on the right who favor strong executive power and those who fear it.