AMERICA’S NEW SEX Bureaucracy: Campus Title IX Tribunals Are “So Unfair As To Be Truly Shocking”
Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.”
I recently profiled Gersen and her colleagues in a piece for the Chronicle of Higher Education recounting their effort to defend the “most basic principles we teach” against a movement that is working tirelessly to subvert them. It is significant that they speak from within that movement—the feminist movement—not just because this gives them a margin of credibility within a discourse that tends to assign standing on the basis of identity, but also because their intimate knowledge of the antecedent and ongoing struggles within feminism helps them to understand the intellectual roots of what is happening, and where those ideas are taking us.
According to Gersen and Halley, who have extensive experience advising accusers and accused within the system, the tribunals are typically not adjudicating cases that conform either to legal definitions or to common intuitions of what rape and sexual assault entail. “Everyone who works in the Title IX world,” Gersen told me, “if you talk to them about the nature of these factual claims, for the most part we are not talking about accusations of forcible or coercive conduct.”
“To stand up for fair treatment became something considered brave,” Gersen told me. “That was so amazing. People kept saying, ‘This is so brave of you!’ This is what we are trained to do, which is to stand up for fair procedures. It’s the most basic, boring, and vanilla things that lawyers do,” Gersen said. “And yet the idea was, ‘Wow, this is just really sticking your neck out.’ That’s when you knew the political environment had become extreme—when the most banal thing a lawyer says requires courage to say.”… Collectively, they have a stern message about the present course of the movement: As Halley, writing in the Harvard Law Review about a case in which a loud demand for punishment accompanied indifference to the guilt or innocence of the accused put it, “We have to pull back from this brink.”
tabletmag-Wesley Yang
