Title IX, 1999, and 1789

 

The Office of the Independent Counsel was created post-Watergate to investigate executive branch wrongdoing. The Democrat-majority Congress reasoned that the DOJ would not be able to effectively investigate its colleagues and bosses. Republicans objected to the independent counsel statute for decades, both on separation-of-powers grounds, and because it was used as a political tool to harass Republican presidential administrations. But it wasn’t until Democrats’ own ox was gored, during the Clinton administration in the form of Kenneth Starr, that Democrats realized what they had wrought. The statute was allowed to expire quietly in 1999 with bipartisan agreement.

I thought of this history as I read Laura Kipnis’s account of Northwestern University’s own independent investigation of her conduct. Kipnis, a liberal professor at the university, has dedicated her career to feminist causes. However, after she recently wrote about her concerns regarding new university policies on sexual relations between professors and students, she became the focus of protests by feminist students. At first, she brushed off the protests. “I’d argued that the new codes infantilized students while vastly increasing the power of university administrators over all our lives, and and here were students demanding to be protected by university higher-ups from the affront of someone’s ideas, which seemed to prove my point.”

But then:

Things seemed less amusing when I received an email from my university’s Title IX coordinator informing me that two students had filed Title IX complaints against me on the basis of the essay and “subsequent public statements” (which turned out to be a tweet), and that the university would retain an outside investigator to handle the complaints.

I stared at the email, which was under-explanatory in the extreme. I was being charged with retaliation, it said, though it failed to explain how an essay that mentioned no one by name could be construed as retaliatory, or how a publication fell under the province of Title IX, which, as I understood it, dealt with sexual misconduct and gender discrimination.

Kipnis describes an extremely opaque process. She was originally not informed of the specific charges against her, or who had brought them. She was not entitled to legal representation — though she was entitled to bring a “support person”. She was not entitled to see the evidence against her, much less rebut it. The investigators are judge and jury. She was required to keep everything confidential; paradoxically, when a graduate student clearly antagonistic to Kipnis published all sorts of inside information about the case, and her “support person” quoted the article in a faculty meeting, new Title IX charges were brought against Kipnis’s supporter.

It turned out that the complainants, and the complaints themselves, had only the barest connection to her article.

Both complainants were graduate students. One turned out to have nothing whatsoever to do with the essay she was bringing charges on behalf of the university community as well as on behalf of two students I’d mentioned — not by name — because the essay had a “chilling effect” on students’ ability to report sexual misconduct….

The other complainant was someone I’d mentioned fleetingly (again, not by name) in connection with the professor’s lawsuits. She charged that mentioning her was retaliatory and created a hostile environment (though I’d said nothing disparaging), and that I’d omitted information I should have included about her…. She also charged that something I’d tweeted to someone else regarding the essay had actually referred to her. (It hadn’t.)

Please pause to note that a Title IX charge can now be brought against a professor over a tweet. Also that my tweets were apparently being monitored.

Despite the investigators’ insistence on confidentiality, Kipnis has written her account of the process, because she says she is appalled by the assault on her speech and due process rights.

This is a fight that conservatives have been fighting for years and even decades, but — as with the independent counsel statute — perhaps it is only a fight that those on the other side can win. In that light, the awakening of liberal professors to the illiberal application of their ideas is encouraging. Only Nixon can go to China, after all.

And yet, I find I am pessimistic nonetheless — because upon reflection, it seems to me that the independent counsel analogy inapt. Title IX is not merely a case of procedural abuse. Rather, it is a symptom of a larger cultural problem.

Perhaps a better way to understand Lura Kipnis’s situation is that the Sexual Revolution has entered its Terror phase. Having effectively dismantled the patriarchy in all meaningful respects, the revolution now brands citizens who are insufficiently loyal to the regime as enemies of the Republic. Some citoyens will exploit the situation, accusing their neighbors of treason in order to settle scores. Regardless, no one will be safe, not even the movement’s Jacobins, for the revolution needs to continually replenish its supply of enemies in order to justify its continuation. The revolution devours its children.

In the end, will the revolution deliver liberté, égalité, and sororité? Or will the masses, after decades of sexual uncertainty and terror and collateral damage, welcome the reestablishment of a more traditional order, even if that order is nominally less free? The impact of the sexual revolution on Western civilization — it’s too soon to tell.

Published in Culture, Domestic Policy, Education, Education
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  1. The Reticulator Member
    The Reticulator
    @TheReticulator

    Son of Spengler: Perhaps a better way to understand Lura Kipnis’s situation is that the Sexual Revolution has entered its Terror phase. Having effectively dismantled the patriarchy in all meaningful respects, the revolution now brands citizens who are insufficiently loyal to the regime as enemies of the Republic. Some citoyens will exploit the situation, accusing their neighbors of treason in order to settle scores. Regardless, no one will be safe, not even the movement’s Jacobins, for the revolution needs to continually replenish its supply of enemies in order to justify its continuation. The revolution devours its children.

    Yes, perhaps. Interesting observation.

    • #1
  2. Oblomov Member
    Oblomov
    @Oblomov

    Frightening analogy, considering what and who came after the Terror. Good post.

    • #2
  3. Arahant Member
    Arahant
    @Arahant

    Son of Spengler: Regardless, no one will be safe, not even the movement’s Jacobins, for the revolution needs to continually replenish its supply of enemies in order to justify its continuation. The revolution devours its children.

    Indeed, indeed it does.

    • #3
  4. user_1010693 Inactive
    user_1010693
    @Vespacon

    the Sexual Revolution has entered its Terror phase

    Great analogy. I don’t wish actual harm upon the Left, but I can’t help but be a little pleased that they are feeling some of their own heat.

    • #4
  5. J. D. Fitzpatrick Member
    J. D. Fitzpatrick
    @JDFitzpatrick

    Excellent analysis. Hat off to you.

    • #5
  6. 10 cents Member
    10 cents
    @

    Funny how people think the complaints come just from bad people till they are found in the process. I think the cliche is “A taste of your own medicine.”

    • #6
  7. Sandy Member
    Sandy
    @Sandy

    Brilliant essay, SoS.  That this is happening in our universities is entertainingly ironic, predictable, and, as you lay it out so well, frightening.

    I assume that by writing of ” a more traditional order, even if that order is nominally less free” you did not mean to imply that it would actually be less free.  

    • #7
  8. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    Sandy, what I meant is that the sexual revolution opened up lots of new freedoms for women. They have much more choice about work and family, marriage and childbearing, than in any other time and place. But I suspect that eventually, in the interest of establishing more sexual predictability and order, society could curtail that freedom. The second-wave feminists viewed 1950s American housewives as being trapped in slavery by the culture. I doubt we’d end up like Saudi Arabia, where women can’t drive and must be accompanied by a male escort when going out. But if we go back to more traditional views on sex and relationships, it’s conceivable that society will place some social constraints on women that would limit their choices relative to the ones they have today. The tradeoff is that we would reclaim other freedoms — freedom of religion, freedom of speech, better adherence to due process, etc.

    • #8
  9. Sandy Member
    Sandy
    @Sandy

    Son of Spengler:Sandy, what I meant is that the sexual revolution opened up lots of new freedoms for women. They have much more choice about work and family, marriage and childbearing, than in any other time and place. But I suspect that eventually, in the interest of establishing more sexual predictability and order, society could curtail that freedom. The second-wave feminists viewed 1950s American housewives as being trapped in slavery by the culture. I doubt we’d end up like Saudi Arabia, where women can’t drive and must be accompanied by a male escort when going out. But if we go back to more traditional views on sex and relationships, it’s conceivable that society will place some social constraints on women that would limit their choices relative to the ones they have today. The tradeoff is that we would reclaim other freedoms — freedom of religion, freedom of speech, better adherence to due process, etc.

    Thanks for this explication.  I’d been thinking more narrowly of a return to a more traditional understanding of due process (in which a Title IX might not exist), under which, I believe, there is more, not less, freedom and certainly more justice.

    • #9
  10. Songwriter Inactive
    Songwriter
    @user_19450

    Great post, SoS.

    Is it petty of me to long to hear from the Left just once, “Gee, the Conservatives were right all along”?  It’ll never happen.

    So I guess Conservatives will have to settle for “I told you so.”

    • #10
  11. Autistic License Thatcher
    Autistic License
    @AutisticLicense

    Is there a way to operate a college or University exempt from this kind of Federally-sponsored Inquisition? One where accused persons have rights under civil and criminal law? Evidence, cross examination, that kind of thing? Any of you legal members know? Does Hillsdale have a monopoly on actual University values?

    • #11
  12. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    It’s comforting to learn that Title IX coordinators are still tending to their knitting.

    • #12
  13. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    Prof Kipnis was hoping the crocodile would eat somebody else.

    The moral of this story is shut up and lawyer up at the first sign of trouble no matter what the disciplinary committee says you are or aren’t allowed to do.

    • #13
  14. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    Is there a trend, beyond the field of higher education, of due process and balance of powers being replaced by all-powerful judges? Are we becoming a culture that prioritizes results over means?

    I’m thinking there might be examples beyond law. But with RICO laws, the Patriot Act, Title IX, and the John Doe laws in Wisconsin, it seems there is an ever growing body of convenient exceptions to procedural protections.

    • #14
  15. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    The way to fight this kind of oppression is civil disobedience. That comes with severe costs to the individuals who resist. But Steyn’s experience in Canada and the Wisconsin John Doe story show how oppression can be defeated by exposing it to public scrutiny.

    If I was ever plagued by a pseudo-legal prosecution, the first thing I would do is make the bullies known on Ricochet.

    • #15
  16. Kozak Member
    Kozak
    @Kozak

    Son of Spengler:Despite the investigators’ insistence on confidentiality, Kipnis has written her account of the process, because she says she is appalled by the assault on her speech and due process rights.

    This mirrors Scott Walkers experience in Wisconsin, where under the “John Doe” statutes a politically motivated prosecutor was able to investigate, harass and threaten conservatives and under the Kafkaesque, Star Chamber regulation it was a crime for those involved to mention their investigation or any charges against them.
    The targets were told not to tell their lawyers, or their friends, or their neighbors. When armed cops storm the house next door, people often wonder why, but the targets were forbidden from discussing what happened. As French points out, this wasn’t the right to remain silent and avoid self-incrimination, but an order to remain silent and not to make any professions of innocence. They had a keener sense of due process in Salem, Mass.

    The investigators were, among other things, fishing for campaign-finance violations, on dubious grounds. So, for exercising their First Amendment rights, some targets were denied their First Amendment rights. This is the Bill of Rights, via Kafka and Inspector Javert.”

    Felix Edmundovich Dzerzhinsky must be smiling in Hell.

    • #16
  17. Kozak Member
    Kozak
    @Kozak

    Autistic License:Is there a way to operate a college or University exempt from this kind of Federally-sponsored Inquisition?One where accused persons have rights under civil and criminal law?Evidence, cross examination, that kind of thing?Any of you legal members know?Does Hillsdale have a monopoly on actual University values?

    I believe the way is to not accept a single federal dollar.

    • #17
  18. user_82762 Inactive
    user_82762
    @JamesGawron

    Son,

    Kipnis needs my uncle Harry Tuttle. He’d know what to do.

    Regards,

    Jim

    • #18
  19. user_3467 Thatcher
    user_3467
    @DavidCarroll

    I believe that feminist response to calls for due process in campus rape cases was that no woman would ever falsely accuse a man of rape.  So here it follows that no feminist would ever claim to be offended when she was not.

    • #19
  20. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    Aaron Miller:Is there a trend, beyond the field of higher education, of due process and balance of powers being replaced by all-powerful judges? Are we becoming a culture that prioritizes results over means?

    I’m thinking there might be examples beyond law. But with RICO laws, the Patriot Act, Title IX, and the John Doe laws in Wisconsin, it seems there is an ever growing body of convenient exceptions to procedural protections.

    Asset forfeiture seems to me like a similar abuse. That issue is finally getting the attention it deserves. I’ve also seen reviews lately of a number of books that discuss administrative law generally, and how federal administrative agencies have their own courts — thus serving executive, legislative, and judicial functions all at once.

    • #20
  21. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Autistic License:Is there a way to operate a college or University exempt from this kind of Federally-sponsored Inquisition?One where accused persons have rights under civil and criminal law?Evidence, cross examination, that kind of thing?Any of you legal members know? Does Hillsdale have a monopoly on actual University values?

    Just in case anyone is unaware how jealously university values must be guarded against the fascists Left:

    President Roche was appointed the 11th president of Hillsdale College in 1971. He served in that office for 28 years until November 1999. Under his leadership, the college continued and extended its policy of refusing all forms of federal government support. In 1977, efforts were made by the Department of Health Education and Welfare to subject all colleges whose students received any form of federal aid to the full range of federal regulations. This included even those colleges that refused every form of direct aid.

    Hillsdale College refused to agree. In 1984, it lost its case before the Supreme Court and faced the prospect of the loans of all its students and graduates being recalled. Rather than submit, the college organized a private loan fund on the guarantee of its own credit and began to supply privately-based financial aid to replace the federal support.

    Great post, SoS.

    • #21
  22. user_385039 Inactive
    user_385039
    @donaldtodd

    I read that a tautology is a self-reinforcing pretense of significant truth.  It appears that the learned Laura Kipnis has run head-on into that fact.

    Quoting Son: The revolution devours its children.  I should find that heartening, but I don’t.  I have to assume that they are not done eating our children as well.

    • #22
  23. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    As the revolution devours its children, we can at least wish it bon apartit.

    • #23
  24. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    I wish I could take credit for that line, but it was actually an allusion: http://en.m.wikipedia.org/wiki/Jacques_Mallet_du_Pan

    • #24
  25. The Reticulator Member
    The Reticulator
    @TheReticulator

    Kozak:

    Autistic License:Is there a way to operate a college or University exempt from this kind of Federally-sponsored Inquisition?One where accused persons have rights under civil and criminal law?Evidence, cross examination, that kind of thing?Any of you legal members know?Does Hillsdale have a monopoly on actual University values?

    I believe the way is to not accept a single federal dollar.

    This is where those people who think Obama (a generic term, not a particular person) is a redistributionist are off target.  The goal is not redistribution, but dependency.  As long as we make our main complaint the redistributionism, he wins.

    • #25
  26. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    Perhaps the revolution devours its children eventually, but I fear that it will jump off campus first.

    The destruction of due process is one of things that frightens me most.

    • #26
  27. Sandy Member
    Sandy
    @Sandy

    Son of Spengler:

    Aaron Miller:Is there a trend, beyond the field of higher education, of due process and balance of powers being replaced by all-powerful judges? Are we becoming a culture that prioritizes results over means?

    I’m thinking there might be examples beyond law. But with RICO laws, the Patriot Act, Title IX, and the John Doe laws in Wisconsin, it seems there is an ever growing body of convenient exceptions to procedural protections.

    Asset forfeiture seems to me like a similar abuse. That issue is finally getting the attention it deserves. I’ve also seen reviews lately of a number of books that discuss administrative law generally, and how federal administrative agencies have their own courts — thus serving executive, legislative, and judicial functions all at once.

    Administrative courts have been around for a very long time.  For some mysterious reason, they continue to grow in power and get worse.  Congress, also mysteriously, fails to rein them in.

    • #27
  28. user_656019 Coolidge
    user_656019
    @RayKujawa

    It’s about time somebody made the correct observation that our culture has been for decades, perhaps a century, been moving away from the original American take on liberty and more towards that of the French Revolution, which is inherently fascist. This is extremely dangerous to liberty. For an approachable recap on this subject, I recommend Jonah Goldberg’s Liberal Fascism. For more depth, read Hayek’s Studies on the Abuse and Decline of Reason and of course, The Road to Serfdom. 

    Our laws eventually come around to reflecting the values of society. In this case, it’s not necessarily the values of society at large but of those who have annointed themselves. This is the essence of Progressivism.

    One wonders whether at some point whether Progressivism could ever get to the point of improving society to the point where they would rediscover the virtues and implement the tenets of classical liberalism, as what we have embedded in our country’s founding documents. This, sorry to say, will never be. The words of Progressivism rely on using the good-sounding intentions and words of dreamers with the ultimate end to rule society for the benefit of those in power. Many of the original dreamers aren’t aware of the dark side of the path to power that they are involved in. This path is evil. Down this path lies ruin for society and liberty. It needs to be resisted. It needs to be questioned. We need to point out where this is leading. This will not go away on its own. It exists in its most pure form in the universities because it is protected by “academic freedom,” i.e., freedom to construct their world as they would have it, freed from the constraints of reality. It exists there as a laboratory of how they would have the rest of society be. We need to prevent it from getting out of the academy, but if it can be resisted at the source, so much the better.

    • #28
  29. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    Ray Kujawa:It’s about time somebody made the correct observation that our culture has been for decades, perhaps a century, been moving away from the original American take on liberty and more towards that of the French Revolution, which is inherently fascist. This is extremely dangerous to liberty. For an approachable recap on this subject, I recommend Jonah Goldberg’s Liberal Fascism. For more depth, read Hayek’s Studies on the Abuse and Decline of Reason and of course, The Road to Serfdom.

    For a readable pop take on this idea, I recommend Ann Coulter’s Demonic. Ordinarily I find books by columnists and talk show hosts to be a little shallow and repetitive, but this one is really good.

    • #29
  30. Percival Thatcher
    Percival
    @Percival

    I commented on Facebook that the current campus crowd is beginning to resemble the Red Guards.  Mao wound up his little monsters and set them loose, and when they had run out of enemies of the Revolution, they started in on the insufficiently zealous.

    Prof. Kipnis needs to spend more time on the barricades.

    • #30
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