Tuesday, April 5, 2011


This Post updates the immediately previous Post about the Joe Biden talk up at the University of New Hampshire yesterday.

Biden delivered remarks in support of a “Dear Colleague Letter” (DCL) sent out to administrators of all educational institutions that receive federal funds (which is pretty much all of them) by the Education Department. He chose to make his pitch up at UNH because – it is said – they have such a good campus sexual something reporting and prevention program. (No snark intended: that “something” can mean ‘offense’, ‘harassment’, or a bunch of other possible terms, ‘words’ merely yet in legal reality each one leads down a different wilderness path – but Joe was always “bored” in law school with “technicalities” and, come to think of it, that must be said, in a general legal sort of way, about the entire government nowadays).

The ‘Los Angeles Times’ article notes that students “deserve the safest possible environment” in which to learn, and who can deny it? But that “safest” is a tricky word: the “safest” thing would be to either have gender-separate facilities or flood the institution with Preventive Police (sort of a third category of police, along with what the Germans used to categorize as the Order Police and the Criminal Police – well, and perhaps the Secret State Police, but ‘Gestapo’ might be a bit inflammatory in this context). You can go as far as you like along the “safest” road, but then you might find yourself in a very dark territory indeed, at least in terms of a constitutionally-limited sovereign police power.

The DCL requires “immediate action” but due-process takes a little time if you’re going to do it right; but then, in all this Mania thing, the shrill bray of ‘emergency’ is precisely designed to override all that.

The institution is required to initiate its own investigation even if a formal police investigation is still being conducted – which cannot but muddy the waters. But I’m going to imagine that the police haven’t been Correct enough in deciding to open cases, and thus are not as ‘reliable’ as perhaps they once were.

The trick here is to declare sexual violence (however defined) as a form of discrimination and harassment as defined under Title IX, that federal regulation that was originally designed to ensure that females would get equal chance to have athletic programs.

Another article mentions an issue currently being pursued against Yale where the claim is made that even a single instance of any form of rape or sexual violence (however defined) is sufficient to “create a hostile environment”, and anybody familiar with employment law and policy knows where that type of thing very quickly goes.

The ‘Christian Science Monitor’ notes acutely that this entire gambit is based on Title IX, originally associated, as aforenoted, with “gender equity in sports”. The article provides a concise set of bullet-points summarizing the gambit: Title IX is to be considered as protecting all students from sexual harassment (however defined); institutions must have in place a clear system for grievances and also make sure that all students are aware of the system; the institution is not relieved of the responsibility to conduct its own Title IX investigation even if a criminal investigation of the same complaint is still being conducted; AND – most slyly – the Title IX investigation must not use the standard of proof (clear and convincing) required in criminal cases but instead must use the “more likely than not” standard used in racial discrimination cases (meaning that the judging authority must go into the hearing already convinced that the offending action probably did happen).

You can see where this sort of thing can go. Sexual ‘whatever’ charges are now to get the same presumptively-credible treatment as charges related to racism did back in the days of Jim Crow. This is a clear hark-back to the follow-on feminist ‘revolution’in the 1970s trying quickly to piggy-back itself on the Civil Rights movement and its strategies and on the federal legislation that continued to flow from the Beltway as the government found itself being drawn deeper into deeper into social terraforming (in an eerie simulacrum of the dynamics active in Vietnam at precisely the same time).

All of this is necessary to help students “feel safe”, although if after decades of the Mania Regime(s) that objective has not yet been achieved then (as should have happened in Vietnam) serious questions should be asked as to whether the government’s efforts are somehow ill-conceived.

And as well, the institution is also responsible for off-campus incidents involving allegations raised by and against its students, and must also carry out these ‘victim-friendly’ Title IX hearings and investigations.

Another site notes that “Mr. Biden’s New Hampshire visit is part of a broader effort by the Obama administration to draw attention to sexual violence and ways to prevent it”. Which leads me to wonder if this sort of thing doesn’t represent more of a political and electioneering gambit, an effort to whomp up support among a ‘base’ (especially in a State that has one of the earliest primaries, if memory serves).

The site notes that the government quotes from what it considers to be a vitally relevant DOJ-funded 2007 “study” that turns out to have been “a private, Internet-based survey of undergraduate women in 2007 at two public universities in which 19 percent of respondents reported that they had been victims of attempted or actual sexual assault while at college”. I point out again that this is more of a ‘survey’ than a formal ‘study’, meaning that anybody contacted (or perhaps volunteers to say their say) can say whatever they want in the sure and certain knowledge that the ‘researchers’ are not going to be fact-checking or Kicking Tire. The SO community will not be unfamiliar with this type of ‘study’ and the Findings that flow from it.

If you look at this site’s piece, I strongly advise looking at the Comments as well, since they give many heartening examples that there are still Tire-Kickers alive and well in the land.

And even the venerable ‘Chronicle of Higher Education’ site discusses the matter (and again, look at the Comments). And it is in this site’s piece that you will find a link to the DCL itself.

The Chronicle piece notes that somehow sexual harassment or violence (however defined) has morphed into that ‘discrimination’ which the Title, along with all the other anti-discrimination legislation and regulations of the era, was designed to prevent.

This suggests two thoughts to me.

First, they must be getting pretty pressed for ‘issues’ in the Beltway if they have to start playing around like this. And it’s been decades (Antioch College’s sex code was 20 years ago) since all this agitation began, so it’s hard to believe that college students today remain as unenlightened as they were in the ‘90s or the ‘80s.

Second, there is the rotting whiff of the radical feminist assertion that all sex is simultaneously both a male-perpetrated crime and a political act of oppression. The antidiscrimination legislation was passed to prevent acts and ‘environments’ hostile to blacks simply because of their race. If as a non-black you choose to postpone other activities in order to single out blacks and somehow harm or make them feel denigrated merely because of their race, then you are discriminating.

But here there is simply the menu of sexual relationships and interactions; males do not seek out relationships with females (nor females with males) in order to discriminate against them but simply because it is by and large the evolutionary nature of this gendered species we belong to. And if a heterosexual male does actually and provably commit an actionable assault or crime against a female, it is not because he has chosen to discriminate against her when he might have simply gone off and have himself an encounter with another sex – the ‘civil rights-racism’ template doesn’t work in this scenario at all.

I can’t get out of my head some variant of Christina Hoff Sommers’s 1994 insight: there is something queasily ‘queer’ about all this: it’s almost as if the ‘advocates of the base’ in this thing would prefer that males have sex with males and females with females … I don’t see that this thing bodes well for heterosexuals of either sex.

The ‘Chronicle’ piece also notes that the institution should feel free to deploy such sanctions – even during the investigation period – as requiring a change in dorm housing or prohibiting an accused student from attending classes. This strikes me as very much in the style of the Domestic Violence Regime: whoever steals a march on the other partner and ex parte gets the coveted ‘victim’ part quickly winds up with an Order that can deprive the other partner (cast by default as the ‘perp’) of access to home, funds, children. The excuse given is that this is an ‘emergency’ and it isn’t ‘criminal’ (although if you violate the Order, then THAT is criminal) and it’s all about ‘safety’ and it’s only for 10 days or so anyway (try keeping a job and a life together for 10 days with no access to house, funds, possibly auto, and so forth).

The piece is not fooled, although it displays an admirable restraint: “Some legal experts, however, worry that colleges' investigations and hearings of sexual-assault allegations are inevitably fraught. Criminal prosecutors, for lack of evidence, decline to pursue many cases; under Title IX, colleges must … We've been lured into doing something in a criminal-justice model that the criminal-justice system itself hasn't been able to deal with", one university legal expert is quoted as saying.

And this takes things back to something that I think has been developing for a while: police agencies and/or prosecutors are starting to back away from the tripwire prosecutions of the ‘classical’ age of the Mania , either because they don’t have the money any longer, or juries and citizens are no longer stampeding reliably, or courts are beginning to get worried about how far things have gone, or perhaps even that a point in this sort of cycle has inevitably been reached where its agents are starting to think about how they’re going to look if the scales fall from the public eye … for whatever reason the heyday of gaudy and guaranteed prosecutions and convictions has passed. And yet the government has to keep up the groundswell to please an advocacy ‘base’ and all the cottage-industries that have now accreted parasitically around the initiative.

And so the government must cast about for other ways to keep the ball rolling: thus the ‘commerce clause’ justification for the AWA, the sly efforts to give ‘advocacy groups’ funding and even quasi-police authority, and now this Title IX gambit. But I think that the more tenuous and tendentious the gambits to sew together ‘new’ initiatives to meet fresh discoveries of ‘emergencies’ is going to make police and prosecutors even more uneasy – it is their violation of their sworn responsibilities, after all, that might wind up being used as evidence against them if public opinion recovers a sufficient sense of balance.

And as I have said in previous Posts, certain other government initiatives pretty much guarantee that young males and females are coming to schools less capable of mastering their sexual powers.

The piece even notes that one suggestion is for professors to “spend more time with” students; the article quickly observes that university tasks are structured in such a way that ranking professors are busy with a whole lot of other things besides ‘spending time with’ freshmen.

I would add that given the entire thrust of ‘professional sex offenses’ a professor would have to be several sandwiches short of a picnic to want to expose himself (or herself, perhaps) to the ominous dangers of spending out-of-class time with students.

And precisely what would be the purpose of such an initiative? To provide ‘adult’ companionship that many of the students precisely did not get in whatever passed for ‘family’ in the vital developmental years of their childhood? Are professors to be hastily stuffed like wadded-up bedsheets into the gaping and jagged holes in their students’ lives that were created in the first place by the torpedo-blasts of other government programs and philosophies?

Lastly, one advocate burbles that she hopes that a Bill currently making its way around Capitol Hill (H.R. 6461, see its text here , will be speeded-up by Biden’s speech and the DCL. I am not going to go into the Bill’s text itself (it’s not more than 10pages long if you want to look at it) but I do note that it is designed to prevent in universities not only ‘rape’ (however defined) and sexual violence (ditto) but also sexual harassment (ditto) and stalking (ditto) and even intimate-partner violence (for which, marvelously, no actual sex need have ever occurred to justify the categorization of ‘intimate’).

Well, the Mania Regime is now reaching a point where the hasty, Frankenstein sutures are beginning to show. But that is not good news: lives are being wrecked, vital institutions are being increasingly deranged, and the sovereign authority of the government – already bethumped by an increasingly broad burden of dubious achievements and queasy failures – is being further weakened at a time in the nation’s history when the country needs more coherent intelligence in public policy than it ever has before.

So much needs to be done.

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