The Silencing

by Kirsten Powers

  A Duke University Women’s Studies and English professor named Karla F. C. Holloway was a primary persecutor of the accused students. Holloway, who also is a professor at Duke Law School, penned an article for the 2006 summer edition of a Barnard College Scholar & Feminist Online webjournal,62 in which she demonized the lacrosse players as privileged white men who deserved a presumption of guilt. She accused the players of engaging in the “debasement of other human beings” and alleged that their “presumption of privilege that their elite sports’ performance had earned seemed their entitlement . . . to behaving badly and without concern for consequence.” She wrote, “In nearly every social context that emerged following the team’s crude conduct, innocence and guilt have been assessed through a metric of race and gender. White innocence means black guilt. Men’s innocence means women’s guilt.” Holloway is still employed by Duke University.63

  In a letter to Duke University, Houston Baker, a professor now at Vanderbilt, was quick to demonize and convict the lacrosse players. Their actions were the natural conclusion of Duke’s culture of “white, male, athletic violence.” He accused the University of the “blind-eyeing of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain.”64 He wasn’t the only one. After the case first broke in 2006, Wendy Murphy, a lawyer and adjunct professor at the New England School of Law, went on a tear against the players in various interviews, arguing, “To suggest [the indicted players] were well behaved: Hitler never beat his wife either. So what?”65 She speculated about the accused players, “I bet one or more of the players was, you know, molested or something as a child.”66 And then this: “I never, ever met a false rape claim, by the way. My own statistics speak to the truth.”67

  But there was no truth in the accusations. Eventually all charges were dropped68 against the students and the district attorney who brought the case was fired and disbarred for his actions. Few, if any, apologies were forthcoming from the members of the illiberal mob who harassed and slandered anyone who refused to leap to a presumption of guilt against the players. After North Carolina Attorney General Roy Cooper declared the three accused students “innocent,” Dr. Julianne Malveaux—incoming president of Bennett College, an all-women’s school—told National Public Radio that the students were hooligans and “bad apples” and “don’t deserve an apology.”69

  Arguing to condemn accused men despite the lack of evidence is not a new phenomenon. Al Sharpton, a card carrying member in good standing of the illiberal left, employed these methods when he represented a fifteen-year-old African American girl named Tawana Brawley who had allegedly suffered a brutal rape at the hands of racists in 1987. “We have the facts and the evidence that an assistant district attorney and a state trooper did this,” Sharpton alleged at a press conference. The New York Times70 reported that Sharpton called Governor Mario M. Cuomo a racist and warned that powerful state officials were complicit. When asked whether Ms. Brawley would speak with the state attorney general, Robert Abrams, Mr. Sharpton said that would be like “asking someone in a concentration camp to talk to Hitler.” A grand jury later determined the entire story was made up.71 When asked by the New York Times in 2014 about the destructive hoax, Sharpton said, “Whatever happened . . . you’re dealing with a minor who was missing four days. So it’s clear that something wrong happened.”72 No apology. No contrition. For the illiberal left, facts don’t matter, only ideology does, and vilifying your opponents.

  PRESUMED GUILTY

  The Obama administration has used the illiberal feminists’ bad statistics and presumption of guilt to justify requiring universities to adjudicate rape accusations, something that should be left to law enforcement and the courts. In April 2011, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter reminding colleges and universities throughout the country of their obligation to comply with the requirements of Title IX in order to receive federal funding. Specifically, the letter informed schools of their duty to investigate and adjudicate claims of sexual harassment and assault, no matter the status of a police investigation.73 This requirement is not in the text of Title IX itself, but rather stems from piecemeal statutory amendments and administrative interpretations.74

  Thanks to this policy, schools risk losing government funding unless they agree to handle rape allegations according to a system that provides little due process for the accused. The letter informed colleges and universities of OCR’s expectation that they use the “preponderance of the evidence” standard in these investigations—the lowest standard used by a court of law (usually in civil cases), and far from the “beyond a reasonable doubt” standard that would be used in a typical rape investigation. Using the preponderance of evidence standard, the school is told to determine whether it is “more likely than not that sexual harassment or violence occurred.”75 Pursuant to that standard, the letter reminds colleges that “[c]onduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.”76

  The letter also placed harsh limitations on the accused’s right of cross-examination, stating that, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”77

  Even some Title IX advocates have expressed concern over the possibility of wrongful convictions under the new standards. In an April 2014 newsletter, Brett A. Sokolow, executive director for the Association of Title IX Administrators, wrote that he had seen at least five recent drunken hookup cases in which he felt the accused was wrongfully convicted.78 Harvard civil rights law professor Elizabeth Bartholet has called the government’s position “madness.”79 The New Republic’s Judith Shulevitz blasted the campus “shadow judicial system”80 and explained that “the government, via Title IX, is effectively acting on the notion popularized in the 1970s and ’80s by [radical feminists] Andrea Dworkin and Catharine MacKinnon that male domination is so pervasive that women need special protection from the rigors of the law.”

  After Harvard University announced a new sexual harassment policy in compliance with the 2011 letter, twenty-eight members of the Harvard Law School faculty issued a statement expressing strong opposition. The group said the new regulations “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.”81 Specifically, the professors highlighted the lack of notice and discovery (the right to know what the accusations are and the evidence and testimony of the accuser), as well as the inability of accused students to obtain counsel and cross-examine their accusers as guaranteed by an adversarial judicial system. The letter further decries “[t]he 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.”82 Harvard Law Professor Jennie Suk—one of the signatories—noted in the New Yorker, that there is a “growing rape exceptionalism, which allows fears of inflicting or re-inflicting trauma to justify foregoing usual procedures and practices of truth-seeking.”83

  Yale Law Professor Jed Rubenfeld penned a New York Times op-ed arguing for a new approach84 to the issue of campus rape. “Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard—the ‘more likely than not’ standard, which is much less exacting than criminal law’s ‘proof beyond a reasonable doubt’ requirement—at their rape trials,” he wrote. Rubenfeld blasted the dangerous definition many universities were using for the word “rape” in telling their students “that intercourse with someone ‘under the influence’ of alcohol is always rape.” He pointed to a
posting on a Hampshire, Mount Holyoke, and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent” and “if you have not consented to sexual intercourse, it is rape.” In other words: if you have sex after drinking alcohol, you have been raped.

  This kind of lunacy has become the unquestioned dogma of illiberal feminists and their enablers in university and governmental institutions. Rubenfeld reported that a Duke University dean who was asked what to do if both parties are under the influence answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.”85 How Victorian. So, a drunk woman can’t consent to sex, but a drunk man can. Rubenfeld wrote, “This answer shows more ideology than logic. In fact, sex with someone under the influence is not automatically rape. That misleading statement misrepresents both the law and universities’ official policies. The general rule is that sex with someone incapacitated by alcohol or other drugs is rape. There is—or at least used to be—a big difference. Incapacitation typically means you no longer know what’s happening around you or can’t manage basic physical activity like walking or standing.”

  Jessica Valenti called Rubenfeld’s op-ed a “rape apology.”86 She wrote in the Guardian, “The worst offense is Rubenfeld’s apparent belief that there is a debate’ to be had—as if there are two equal sides, both with reasonable and legitimate points. There are not.” That’s the illiberal left position in a nutshell. “On the one side, there are the 20 percent of college women who can expect to be victimized by rapists and would-be rapists,” wrote Valenti. “On the other side is a bunch of adult men (and a few women) worrying themselves to death that a few college-aged men might have to find a new college to attend.” Anti-rape activist Alexandra Brodsky defended the “preponderance of evidence” standard and dismissed the potential harm to male college students “Getting kicked out of school sucks, but it’s not the same as imprisonment,” she wrote.87

  Remember, the same illiberal feminists who think it is no big deal to kick an innocent man out of college, trash his reputation, and harm his future job prospects on the basis of false accusations are also likely to think that if a woman has to walk past an anti-abortion demonstration on campus she has suffered grievous harm.

  Abusing official power through kangaroo court campus rape “trials” was a precursor to another illiberal feminist pet cause: “affirmative consent” laws. California Governor Jerry Brown signed a bill in 201488 that required “affirmative consent” for all sexual interactions on California state campuses. For people who are forever proclaiming that they want government out of their bedrooms, it’s odd that illiberal feminists supported a law that put the State of California in the middle of every physically romantic interaction on California campuses.

  As first written, the bill, SB 967, required the governing boards of community and state colleges as well as California State University to adopt an affirmative consent standard. This version required that consent be sought at every stage of an encounter—one question for touching, another for kissing, and so on. It required that consent be “expressed either by words or clear, unambiguous actions” though “relying solely on nonverbal communication can lead to misunderstanding.” Consent had to be “present throughout sexual activity”; if “confusion” over consent arises, “it is essential that the participants stop the activity until the confusion can be clearly resolved.” The accused may not invoke confusion over consent as a defense if he or she “did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” The version that passed was less specific and cut the line about “misunderstanding,” but the spirit remained the same.89

  Shikha Dalmia blasted the law in a Reason.com column90 titled “California’s Sexual Consent Law Will Ruin Good Sex for Women.” The subtitle was “And it won’t stop rape.” Dalmia, who describes herself as an agnostic and progressive libertarian, argued that the majority of campus assaults were not “the result of miscommunication.” She noted, “Most assaulters know exactly what they are doing. The vast majority of campus rapes are committed by a small minority of repeat offenders who give not a damn about what the woman wants.” She also argued that, “[W]hether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more ‘convincing.’ And someone who requires convincing is not yet in a position to offer ‘affirmative’ much less ‘enthusiastic’ consent. That doesn’t mean that the final experience is unsatisfying—but it does mean that initially one has to be coaxed out of one’s comfort zone. Affirmative consent would criminalize that.” In other words, seduction itself is now a crime.

  Perhaps it’s not a perfect analysis, but rather than debating Dalmia’s argument, you can guess exactly how the illiberal feminists reacted. Kalli Joy Gray of the liberal blog Wonkette called Dalmia “some dumb lady” who is “too dumb to be having sex in the first place. Please stop.”91 Erin Gloria Ryan of Jezebel wrote an article headlined, “Consent laws are ruining sex, says writer who probably has awful sex” and accused Dalmia of defending rapists.92 Jill Filipovic, the political editor of Cosmopolitan, tweeted that Dalmia’s column proved she was “bad at sex.”93

  It’s strange isn’t it, that illiberal feminists seem obsessed with sexual “freedom,” while at the same time wanting to have every aspect of it regulated by the government, practically requiring a court order. It’s odd that they “slut-shame” and “sex-shame” their female opponents in ways that they would condemn in a man, or any ideological opponent. Illiberal feminists seem at war with nature, with the facts, and with truth. Most of all, they are at war with the freedom of speech and of legal due process that allows us to find the truth.

  EPILOGUE

  As I was finishing this book, I attended a dinner party where three of the guests had firsthand experience with the illiberal left’s silencing campaign. A retired Stanford professor and a current Harvard Law School student, both evangelical Christians and conservatives, described being intimidated into silence on their respective campuses. Like the “closeted conservatives” New York University Professor Jonathan Haidt discovered in his research, they felt forced to hide their religious and political beliefs lest they be discriminated against or ostracized. A third dinner guest—a former professor at a Washington, D.C., area university—was passed over for a position because she was suspected (correctly) of being conservative. This is in writing.

  A few days later, I participated in an Oxford-style debate1 hosted by Intelligence Squared in Washington, D.C. FIRE’s president Greg Lukianoff and I argued in favor of the motion, “Liberals are stifling intellectual diversity on campuses.” Arguing against was George Mason University professor Jeremy Meyer and Angus Johnston, an historian of student activism.

  Greg and I won the debate. But such victories are bittersweet. There is little pleasure in making a persuasive case that people on the left side of the political spectrum are intimidating and demonizing others into silence.

  Just as disheartening was realizing how great a chasm of disagreement exists on this topic. Meyer cited research from a 2008 book he co-authored—Closed Minds2—which found that even though liberals outnumber conservatives within faculty ranks, 85 percent of conservatives surveyed argued that ideology played no role in tenure in their departments.

  Personally, I have not encountered a single conservative academic who believes there is no ideological bias at the college or university at which they are or were employed. Instead, I’m inundated with chilling stories from fair-minded and brilliant academics who would like to just do their research and teach their students without the thought police on their tails. Moreover, the illiberal prejudices of predominantly liberal colleges and universities are too well documented to ignore.

  Meyer argued that the reason liberals overwhelmingly outnumber conservatives in academia isn’t because of anything liberals are doing; it’s because conse
rvatives only care about making money, are hostile to science, and embrace anti-intellectualism.3

  Gee, why would any conservative be worried about discrimination in academia with attitudes like that?

  As I listened to this kind of talk, it occurred to me that the only way any person could believe what Meyer was saying was if they had no meaningful relationships with conservatives. One visit to my church would dispel all three of his claims. A little research into evangelical ministries would lay to rest the idea that conservatives only care about making money. And perhaps he’d like to meet my aforementioned dinner party companions to discuss the anti-intellectualism charge.

  It seemed even odder to hear Meyer’s argument as I sat next to Greg, a liberal atheist who receives phone calls every week from people seeking legal representation to protect them from actions taken due to ideological or anti-religious bias in higher education. As Greg noted in his opening statement, there is this unfortunate truth: “If you’re going to be censored on the modern college campus for your opinion, chances are you’re going to be censored by the Left.”

  The Intelligence Squared debate was focused narrowly on higher education, but our opponents’ arguments were familiar. I regularly hear them from journalists who insist that the lack of conservatives in the mainstream media has nothing to do with the behavior of the overwhelming number of liberals who populate that profession. They claim there is no bias in how they cover the news, even as they acknowledge there is a complete lack of ideological and political diversity in the newsroom. It’s not uncommon to hear members of the media make assertions similar to Meyer’s by stereotyping conservatives and evangelicals as greedy flat-earthers.