By George Will
Saturday, May 14, 2016
Academia’s descent into perpetual hysteria and incipient
tyranny is partly fueled by the fiction that one in five college students is
sexually assaulted and that campuses require minute federal supervision to cure
this. Encouraged by the government’s misuse of discredited social science (one
survey supposedly proving this one-in-five fiction), colleges and universities
are implementing unconstitutional procedures mandated by the government.
The 2006 Duke lacrosse rape case fit the narrative about
campuses permeated by a “rape culture.” Except there was no rape. In 2014, the
University of Virginia was convulsed by a magazine’s lurid report of a rape
that buttressed the narrative that fraternities foment the sexual predation
supposedly pandemic in “male supremacist” America. Except there was no rape.
Now, Colorado State University–Pueblo has punished the supposed rapist of a
woman who says she was not raped.
Grant Neal, a CSU Pueblo pre-med major and athlete, began
a relationship with Jane Doe (as identified in Neal’s lawsuit), although she,
as a student in the Athletic Training Program, was not supposed to fraternize
with athletes. Jane Doe texted an invitation to Neal to come to her apartment.
The following is from Neal’s complaint against CSU Pueblo:
As the intimacy progressed, knowing
that they both wanted to engage in sexual intercourse, Jane Doe advised
Plaintiff that she was not on birth control. Accordingly, Plaintiff asked if he
should put on a condom. Jane Doe clearly and unequivocally responded ‘yes.’ . .
. They proceeded to engage in consensual sexual intercourse, during which Jane
Doe . . . demonstrated her enjoyment both verbally and non-verbally.
The next day, one of Jane Doe’s classmates, who neither
witnessed nor was told of any assault, noticed a hickey on the woman’s neck.
Assuming an assault must have happened, the classmate told school officials
that an assault had occurred. Jane Doe told school officials the sex was
consensual: “I’m fine and I wasn’t raped.” Neal’s lawsuit says she told an
administrator: “Our stories are the same and he’s a good guy. He’s not a
rapist, he’s not a criminal, it’s not even worth any of this hoopla!” Neal
recorded on his cellphone Jane Doe saying that nothing improper had transpired,
and soon the two again had intercourse.
Undeterred, CSU–Pueblo mixed hearsay evidence with
multiple due-process violations, thereby ruining a young man’s present (he has
been suspended from the school for as long as Jane Doe is there) and blighting
his future (his prospects for admission to another school are bleak).
Title IX of the Education Amendments enacted in 1972
merely says no person at an institution receiving federal funds shall be
subjected to discrimination on the basis of sex. From this the government has
concocted a right to micromanage schools’ disciplinary procedures, mandating
obvious violations of due process.
In 2011, the Education Department’s civil-rights office
sent “dear colleague” letters to schools directing them to convict accused
persons on a mere “preponderance” of evidence rather than “clear and
convincing” evidence. Schools were instructed to not allow accused students to
cross-examine their accusers, but to allow accusers to appeal not-guilty
verdicts, a form of double jeopardy.
Although a “dear colleague” letter is supposedly a mere
“guidance document,” it employs the word “must” in effectively mandating
policies. While purporting to just “interpret” Title IX, these letters shred
constitutional guarantees. And the letters evade the legal requirement that
such significant rulemaking must be subject to comment hearings open to a
properly notified public. Even were CSU–Pueblo inclined to resist such dictates
— academic administrators nowadays are frequently supine when challenged — it
would risk a costly investigation and the potential loss of the 11 percent of
its budget that comes from Washington.
The Chronicle of
Higher Education says the case raises this “intriguing” question: “What
responsibility does a college have to move ahead with a third-party complaint
if the supposed victim says she consented?” This question, which in a calmer
time would have a self-evident answer, will be explored in Neal’s lawsuit. It
should reveal what the school thought of Jane Doe’s statement exculpating Neal,
who says a school official “brushed off” the recording and said that Jane Doe
said what she said “just because she was scared of you.” Neal’s lawyer says he
suspects that Jane Doe might now be intimating something “inappropriate” and is
perhaps scared of losing her place in the Athletic Training Program.
CSU–Pueblo should be scared of joining those schools that
have lost lawsuits filed by students denied due process. Such suits are
remedial education for educators ignorant of constitutional guarantees.
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