Know Your Title IX

Parents hope that their children will emerge from college having formed the capacity to think and act responsibly and constructively. They want them to gain the competitiveness that flows from informed conscientiousness. Imparting critical thinking skills remains central to this mission, and I have a long-standing commitment to promoting viewpoint diversity at my institution, the University of Southern California -- as a faculty member, administrator and someone who spent 26 years living in a university residence hall.

I have long believed different groups should have a voice on our campus. I also serve as a faculty adviser for various conservative student groups. As I am not a conservative myself, I offer them little advice. My primary role is to vouch for them with university administration so they are permitted to meet on campus, recruit members and invite and sponsor speakers. When I was running a residence hall, I also helped to provide a meeting venue as needed. When the university Objectivists club brought the Danish cartoons depicting the prophet Muhammad to the campus, I paid the incremental security costs the university imposed on the group. Sometimes, I even reach beyond my institution if doing so touches student groups: when vandals stole the California Patriot’s press run out of their office at the University of California, Berkeley, I paid to replace the issue.

Politically, I am libertarian, so I am not particularly partisan. That gives me ample opportunity to disagree with almost everyone around me, which I am careful do in a respectful and reasoned way.

But voicing different views -- no matter how respectful or reasoned -- has become increasingly difficult on campuses these days, and I will offer a personal case in point.

A New and Challenging Era

In recent years, Title IX and its interpretation has changed the landscape at many higher education institutions. In 2011, I took a middle-management role as vice dean for academic programs in the USC Viterbi School of Engineering. In that position, I turned attention to the university’s responses to the U.S. Department of Education’s guidance to colleges and universities concerning sexual conduct complaints under Title IX.

As higher education attempted to cope with the new requirements in the 2011 Dear Colleague letter, the department’s Office for Civil Rights investigations of institutions mounted, including multiple investigations at my own. Expulsions of and lawsuits by students accelerated nationwide. I grew accustomed to calls from frightened parents who wanted to know if the university would entertain a transfer application from their son or daughter, who had been expelled from another institution for sexual misconduct.

USC will not. Like most all institutions, mine requires that students who transfer to us be in good standing at the institution they depart. There was a time when this was the best policy. Before 2011, institutions were so reluctant to expel students that many expulsions were preceded by convictions for criminal acts. Anyone who had been expelled from any institution was very likely someone whom a new community would not be inclined to take a risk on.

But that has changed. The meaning of expulsion is now far less significant in evaluating people’s records because more of the innocent are likely to be expelled, too.

And that’s in large part because, in student sexual misconduct cases, many institutions continue to apply the preponderance of evidence standard imposed by the Obama administration’s 2011 Title IX guidance. The Department of Education has since rescinded this guidance and is in process of replacing it. But California institutions, for example, are required to persist nonetheless. California’s affirmative-consent law still requires California’s public and private institutions to adopt policies on sexual assault complaints that rely on a preponderance of the evidence standard rather than the traditional beyond a reasonable doubt one.

The preponderance of the evidence standard means the test for identifying guilt is now more powerful -- fewer people who are guilty escape punishment. But many who may not be guilty can’t escape, either. Indeed, students can have their academic career ended, their future ruined, without “beyond a reasonable doubt” evidence that they actually committed any crime -- they can be found guilty of nothing more than being persuasively accused.

On those grounds, I objected to the Obama administration’s Title IX guidance: it is more important to avoid punishing innocent students than it is to ensure that none of the guilty escape. This notion, the presumption of innocence, serves as the cornerstone for our entire system of justice (and is enshrined as a fundamental right in Article 11 of the UN Declaration of Human Rights).

A Rush to Judgment

That is the context in which I responded to an announcement of an event featuring the organization Know Your IX that was circulated by a student group to the faculty members and students of the USC Price School of Public Policy. I was originally tenured and retain a substantive secondary faculty appointment there. The announcement occurred the day Christine Blasey Ford testified before the U.S. Senate Judiciary Committee on the appointment of now U.S. Supreme Court associate justice Brett Kavanaugh. The authors of the announcement referred to those events and included a call to “believe survivors.” I responded to this schoolwide email as follows:

If the day comes you are accused of some crime or tort of which you are not guilty, and you find your peers automatically believing your accuser, I expect you find yourself a stronger proponent of due-process protections than you are now. Accusers sometimes lie.

My intent was to create a moment for empathy and reflection. Instead, this brief note -- emphasizing the importance of due process and the presumption of innocence -- led to a torrent of public condemnation (followed by a private flood of confidential email thank-you notes). The dean of the USC Price School publicly described my comments variously as insensitive, incendiary, inappropriate and not consistent with the school’s values statement. I contested those characterizations. Student anger associated with these exchanges culminated in a protest calling for my termination. The dean responded to the protest with extemporaneous remarks promising further “education” of the faculty.

The university’s central administration remained publicly silent on the matter and has had no private communication with me. The closest I came to a response from the university’s leadership consisted of some private messages from Board of Trustees members. Like almost all of the private messages I received, they were supportive but were the sentiments of individuals expressing private opinions, not acting to communicate the position of the corporation. No one seemed willing to publicly defend me or my arguments lest they, too, draw the ire of student activists.

While I did not anticipate such a militant response from the students, I cannot regret my attempts to intervene into this discussion. The fact that such an allergic reaction occurred in response to my calculatingly mild and brief assertion is evidence of the assertion’s relevance.

My institution recently appointed a new president, Carol L. Folt. This will almost certainly mean a regime change with respect to USC’s central administration and with it a possible rethinking of our institutional response to federal requirements for handling sexual misconduct allegations. I hope President Folt’s new administration will embrace the spirit and letter of the Department of Education’s new draft rules, which substantially strengthen due process for accused students. Ideally, government should not contrive policies intended to replace courts of law with university disciplinary proceedings. Sexual misconduct charges belong in the hands of prosecutors, not student affairs officials, but if universities are thrust into this role, then the process has to rest on a foundation of procedural fairness.

The University of Southern California, in particular, has a great deal at stake. The recent admissions scandal notwithstanding, it has made a series of impressive transitions in the nearly 31 years I have spent on the faculty, and I have been fortunate to be part of the place. But the increasing willingness of significant populations within the institution to embrace identity politics, and to rush to judgment on most any question with a social justice dimension, threatens our core principles and institutional health. Students, professors and administrators who understand this risk cannot bite their tongues or capitulate to the mob. We must lead on these issues and chart another path forward.