Title Nein from Outer Space

The problem with nearly every government program or regulation is that it spawns a private sector industry to leech off the regulation, as well as a new constituency group to support the perpetuation or expansion of the regime.

Today’s example is the egregious Title IX sexual assault protocols for college campuses, which, as noted here previously, isn’t even a formal federal regulation. It proceeded from a “dear colleague” “guidance” letter from the Department of Education—an example of what legal scholars call the growing practice of “informal rule-making.” It may seem informal to you, but when you’re on the receiving end, with the threats and blandishments of the federal government coming at you, it seems about as “informal” as a request from Don Corleone.

Yours, for only $299

Yours, for only $299

The Title IX campus rules would never survive a the formal regulatory rule-making process under the Administrative Procedure Act, but the DOE’s “guidance” letter was enough to generate the Association of Title IX Administrators, which exists to offer expert guidance to college administrators everywhere. (This seems to be the creature of the plainly leech-like NCHERM Group, which offers “risk-management consulting services” to  universities.) They offer a premium newsletter, Title IX Today, for a mere $299 a year. Such a deal! (The email I received promoting this must-reading has the subject heading: “Title IX: Now Better than Ever!”)

But based on the public content of the newsletter, readers will be in for a disappointment. The latest issue leads off with an article from the editor and publisher of Title IX Today, Brett Sokolow, J.D., reviewing a recent sexual assault ruling at Vassar College. Vassar recently had a rape finding against a male student stand up to challenge in federal court (though an appeal is pending), but as you read Sokolow’s account you wonder why anyone could think this was a just outcome. You may wonder further about the legal acumen of Mr. Sokolow, who I doubt is fit to litigate a parking ticket. I’ve marked a few of the more outrageous aspects of this case in bold:

The Association of Title IX Administrators’ Model Policy had its first serious test in federal court in March, in the case of Yu v. Vassar. Yu was expelled from Vassar for sexual misconduct, and the college’s policy, based on the ATIXA model, was deeply scrutinized by Federal Judge Ronnie Abrams in her ruling. The fairness of the policy was a central issue in the case, and Judge Abrams dismissed Yu’s lawsuit on summary judgment in favor of Vassar, finding fundamental fairness in the policy prohibiting sexual activity by a student who knows their partner to be — or should know their partner to be — incapacitated by alcohol or other drugs.

Xiaolu “Peter” Yu, a student on the rowing team, and a female teammate who is the daughter of a faculty member, attended a party, where they drank alcohol and chatted, and afterward left to together [sic]. Two student-witnesses who saw them walking together reported that the female student looked very intoxicated. Later that night, Yu lost his virginity to her in his dorm room.

In Facebook messages following the encounter, the young woman apologized for having led Yu on that night, and wrote that while she had a “wonderful time,” she was just “too close to her previous relationship to be in one right now.” When Yu added that he hoped he would not be written up by the resident advisor who knocked on his door during the encounter, the female student replied that if that happened, she would stand up for him and that she hoped he didn’t get in trouble.

Between then and the time almost a year later when she accused him of sexual assault, she sent him other Facebook messages, writing: “I did not treat you very well,” “It was disrespectful on my part to do what I did because I was drunk,” and “I never meant to hurt you.”

Yet it was Yu who was found in violation of campus policy by an all-faculty hearing panel and expelled. After an appeal panel denied his appeal, Yu sued the institution, claiming: 1) that he was wrongly found guilty of the offense due to institutional gender bias; and 2) the severity of the penalty was affected by his gender.

In granting the institution’s motion to dismiss, a district court judge found the element of gender bias to be missing from the policies and procedures that school officials and members of the disciplinary and appeal panel’s followed in finding him responsible for a policy violation and sanctioning him with expulsion.

Vassar’s policies prohibit sexual misconduct, including non-consensual sexual intercourse, which is defined explicitly in the ATIXA Model Policy. It states that for individuals to engage in any sexual activity of any type with each other, there must be “clear, knowing and voluntary consent prior to and during sexual activity.”

Vassar’s policy states that the question of incapacitation is determined on a case-by-case basis and includes an analysis of whether the accused knew, or a sober, reasonable person in the position of the accused should have known, that the complainant was incapacitated. Yu himself never claimed that he was incapacitated. But even if he had been, that’s irrelevant given that the school’s rule, and ATIXA’s Model Policy, provide a sober, reasonable person standard. This was not lost on the court.

Title IX Now Better Than Ever, indeed! Based on the facts as reported here, it seems like the Title IX sexual assault judgment should have been handed down against the woman. As Glenn Reynolds likes to say, the whole point of the Title IX Inquisition is to create a hostile campus environment for men. I hope universities keep having to pay out large settlements for these kangaroo court proceedings (apologies to kangaroos, who deserve better than this comparison).