Aren’t Men Entitled to Due Process on Campus?
2014-02-01 · Guest: Cathy Young (Author and Columnist) · 82:33
Erosion of due process on college campuses
Bob Zadek interviews Cathy Young about her article “Guilty Until Proven Innocent,” exploring the erosion of due process for male students on college campuses facing sexual assault allegations. They discuss how Title IX and federal mandates from the Department of Education have pressured universities to adopt quasi-judicial systems that lack constitutional safeguards like the presumption of innocence and the right to legal counsel. The second half of the program features a debate between Bob and John Rothmann regarding the efficacy and fairness of school vouchers in the American education system.
Topics: Title IX, due process, campus sexual assault, sexual assault statistics, school vouchers, public education, federal mandates, Office for Civil Rights (OCR)
Speakers:
- Bob Zadek: Host
- Cathy Young: Author and Columnist
- John Rothmann: Guest and Political Commentator
- Julie: Caller
- Diana: Caller
Introduction [00:00]
Bob Zadek: Hello everyone, welcome to The Bob Zadek Show. I’m your host, Bob Zadek, every Sunday at noon at Talk 910. Thanks so much for listening. I am your host, Bob Zadek. 800-345-5639 is the way to join the libertarian conversation. We are the only live libertarian talk radio show on the air all weekend—the show of ideas, not attitude. 800-345-5639. Glad to be back with you, my friends, after a week off on vacation, but I’m sure happy to be back.
Many of our young men and women have their first experience of being away from home when they attend college. In college, presumably some or hopefully a fair amount, but at least some of the course material will include basic principles of what I might call civics, political life in America. Hopefully, these young men and women will have what they learned in high school on the Constitution be reinforced. The principles, the core principles of constitutional life in America will be reinforced: the Bill of Rights. They might be reminded of the Bill of Rights, the right to be confronted by your accuser, the right to a trial, a criminal trial by jury of a jury of your peers, basic rights of due process.
So, these young men and women will—many of them, hopefully a great number of them—will learn about what civil life is like in America. Then they will leave the classroom and live in the most unconstitutional environments in America, which is life on America’s college campuses, where, as you will learn in today’s show, students are deprived of many of the protections, constitutional protections, that the rest of us are afforded. But yet, for the four years or more that these students live in colleges, they are deprived in the most shocking way of most of their constitutional protections.
This was brought to my attention when several months ago, I read an article entitled “Guilty Until Proven Innocent.” The article was written by Cathy Young. Cathy Young is the author of two books, Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality and Growing Up in Moscow. She’s a regular op-ed columnist for the Boston Globe, the Detroit News. She’s written for the New York Times, Wall Street Journal, Washington Post, and many other mainstream media outlets. Cathy has been gracious enough to join us for an hour of her time this Sunday to discuss the often shocking, always and to me enraging, story of life on college campuses: guilty until proven innocent. Cathy, welcome to the show this afternoon.
Cathy Young: Oh, thank you very much for having me.
The Case of Peter Yu [04:51]
Bob Zadek: Now, Cathy, in your article that got my attention, which you wrote in Reason magazine, you started the article with the story of Peter Yu. Just to set the tone for this show, tell my friends the story of Peter Yu, and that will explain to the audience the importance and the thrust of today’s show.
Cathy Young: Oh, yeah, absolutely. So, Peter is a student at—or was a student at Vassar College, who was, by the way, a Chinese national who was studying in the United States. It’s kind of ironic, you know, given that he’s coming from China, a communist country, to a country where, you know, presumably we respect civil liberties and individual rights, and then he finds himself in the middle of this case.
So, basically, he strikes up a friendship with a young woman who is a fellow member of the college rowing team. They have a conversation at a party; she’s only recently broken up with her boyfriend. They both have a few drinks. Then after the party, they head over to a campus bar, have a sort of make-out session there, and then go back to a dorm room. And by the way, much of this is—there’s a currently pending lawsuit in which most of these facts are really undisputed by both sides. So, you know, I’m not really just giving you Peter’s version of the story.
They end up having some sexual activity. Peter, by the way, claims that the woman was the one who initiated it. He actually was previously inexperienced in sex and supposedly, you know, she was the one who told him that, you know, he shouldn’t worry and she knows what to do. Now, this is obviously his account. They end up in bed. At some point during this sexual encounter, his roommate walks in, and then the girl kind of gets embarrassed and decides that, you know, she really wants to stop and she’s going home. He doesn’t make—again, by mutual account—he doesn’t make any attempt to prevent her from leaving. She gets dressed, goes home.
The next day, he messages her on Facebook to ask if everything’s okay, and she actually apologizes and says, “You know, I’m really sorry, I just really wasn’t ready for a new relationship yet after breaking up so recently, and you know, I hope I didn’t ruin our friendship,” and so on. So, she’s the one who’s saying this to him. Again, undisputed messages are on the record.
Another year goes by, during which they exchange several emails and messages, about half of which are initiated by her. And once again, you know, all very friendly, all very conciliatory. At one point, she actually invites him over to dinner, which he declines. And then, I believe almost a year to the day—like this would have been the deadline for doing this—after the initial event, the young woman files a charge within the disciplinary system at Vassar, accusing him of basically sexual assault, or in the language of the disciplinary code, non-consensual sex. She doesn’t mention, by the way, when she filed this charge that she sent him all those messages.
So, he gets contacted by the investigator. This is a Title IX gender equity investigator, since this is officially an investigation under Title IX, which mandates equal educational opportunity. Under this legislation, basically sexual assault is classified as a form of discrimination against women, basically depriving them of equal educational opportunity.
Bob Zadek: This is Title IX of a federal statute that’s been around for quite some time.
Cathy Young: Yes, there is a federal statute. Yeah, and that has been the case for some time. Now, the investigator contacts Peter and says, “You know, this is what’s going on. This young woman is saying that you sexually assaulted her.” And Peter says, “Well, wait a minute, you know, I have these Facebook messages from her,” and I think there were also some emails. He shows the messages to the investigator. The investigator asks the young woman about those messages, and she says, “Oh, you know, I was just—I was really fearful and, you know, I was too afraid to confront the fact that he had sexually assaulted me, so, you know, I was just really acting out of fear and confusion, and that’s why I sent those messages.”
Peter says, “You know, please question my roommate. You know, my roommate was there, and he saw that she was not restrained in any way. He saw that she was, you know, not unconscious and being sexually assaulted while passed out.” The investigator talks to Peter’s roommate, he talks to the young woman’s roommate, and there’s also—the corroborating witnesses are basically two young women, also from the rowing team, who claim that they saw Peter and this young woman walking together to his apartment and that she looked very intoxicated. That is the only corroborating evidence.
And the only claim, by the way—there’s no claim that there was any kind of use of force. There’s basically a claim that she was too intoxicated to consent to sex. Now, again, this is not a case where, you know, the claim is as, you know, in the recent case in Steubenville that got a lot of attention. There you had a pretty good argument that, you know, this young woman was basically most of the time when the activity occurred was actually passed out and, you know, in no position to either consent or deny consent. And I can certainly see the argument there that, you know, if somebody is unconscious or semi-conscious, you know, and somebody else has sexual contact with them, yes, that is clearly sexual assault. You know, I really have no argument with that, and I don’t really think too many people would.
In this case, we have a woman who is, you know, walking on her own two feet, you know, supposedly leaning on the guy’s arm, but even so, there’s no claim that he was, for instance, dragging her down the street or anything like that. Walking on her own two feet back to his dorm room, you know, conscious and, you know, aware enough to do that. Conscious and aware enough to interrupt the activity after the roommate walked in and basically decide that she was leaving. So, you know, there’s really no question of her being actually incapacitated. There’s a question of her, you know, presumably having her judgment sort of muddied enough that she, you know, engaged in sexual activity which she would not have engaged in when sober.
The Campus Disciplinary Process [11:21]
Bob Zadek: And the important point is that for an entire year after this isolated event, there was no behavior by either party that would indicate anything unpleasant happened. There was no…
Cathy Young: Oh, if anything else, you know, she was concerned in the initial messages. The young woman sounded concerned that, you know, she had been, you know, rude or, you know, or something by leaving in the middle of this. And she was apologizing for that and basically explaining, you know, her behavior as being confused over a recent breakup.
So, basically, this case goes to a hearing before a panel of three professors. And by the way, one thing that I can’t remember if I mentioned in my article, but this young woman is also the daughter of a faculty member.
Bob Zadek: You didn’t mention that actually, Cathy. You did not mention that in your article, but it was in other material that’s publicly available. And what happened was Peter Yu asked that—and I should mention because the point of your article and the point of this show is not about an isolated incident, but about the process of handling these types of complaints. And what happened was Vassar has something called an Interpersonal Violence Panel. And under the rules of Vassar College, a student is allowed to request that in this quote-unquote “jury,” there be other students.
Cathy Young: And in Peter’s case, he was denied that. And I think one reason I didn’t even go into those details is that, you know, you certainly have other cases in which you do have student jurors where they still end up being sort of kangaroo courts. This one was kind of especially bad in that respect.
And the other thing—and this is actually a pattern that exists that not only exists across different schools but is really pretty much imposed by the federal government now—Peter was denied a chance to have an attorney. So, you know, he was in a position where he was forced to cross-examine this young woman himself.
Bob Zadek: And it should be mentioned, I want to remind the audience, we’re talking about a Chinese national in America, probably for the first time, studying at Vassar, and he now is put in the position of being what is in effect a criminal defense attorney on his own behalf where the stakes are very high.
Cathy Young: Yeah, that is a very good point. And now what happens next, according to Peter—and there’s no transcript of this hearing, but, you know, he basically claims that every time he would start asking sort of pointed questions like, “You know, why did you send me those messages?” or, you know, something like that, the young woman would just start crying and then the members of the quote-unquote “jury” would essentially say, “That’s enough of this, you know, let’s move on to something else.” So he was essentially denied a chance to properly question his accuser.
Bob Zadek: And I’d like to remind the audience that in this case—and remember please, my friends, remember this is not being discussed because it is an isolated, albeit interesting story, but rather this is representative, as Cathy will explain, of what goes on college campuses. So this is not about the story of Peter Yu.
Cathy Young: Oh, yeah, absolutely.
Bob Zadek: Now, so I just want to mention that the quote-unquote “jury,” close quote—now remember, the woman whose last name was Walker…
Cathy Young: Walker, I believe.
Bob Zadek: Her father was a faculty member, and there was no—and it was not clear whether the jury were colleagues of her father.
Cathy Young: Right, right. Well, technically, they were all colleagues of her father in that they’re faculty members in the same college. Whether they personally knew him or not, you know, at a big school like that they may not necessarily, but, you know, certainly the appearance of bias at the very least is definitely there. And at the end of this hearing, Peter Yu ends up getting expelled from Vassar, you know, just getting summarily expelled, and that’s it, you know, that is basically it.
Now, obviously, when we’re talking about this being a kind of de facto kind of criminal trial, there is no possibility of going to jail as a result of this. So in that sense, the stakes are lower. But essentially what happens if you get expelled under this kind of proceeding is, you know, this ends up being a black mark on your record. If you try to apply to another school, it’s going to be on your record that you got expelled from Vassar or, you know, any other school.
Bob Zadek: Or try to get a job.
Cathy Young: Yeah, yeah, and it does go on your record that you were expelled for a sexual offense. So, you know, what are people going to think when they see that? You know, are you a rapist? You know, are you someone who was, you know, running around campus exposing himself? You know, it’s—it’s going to be something that is very, very well may haunt you for the rest of your life. And so this is really—you’re kind of acquiring the de facto equivalent of a criminal record, really, in a sense.
And, you know, this is what happened to Peter. Peter Yu is actually now suing Vassar, and there have been several lawsuits that have been filed just this year. There was actually a similar lawsuit that was settled the other day by a college in Ohio. And there have actually been several lawsuits like this that have been kind of settled quietly. So, you know, there are—and it’s kind of ironic that Peter specifically, Peter Yu, is suing Vassar under Title IX, which is also the, you know, law that mandates these sexual assault investigations. And he is saying that the system at Vassar is so biased against males in cases of accusation of sexual assault that it essentially amounts to gender discrimination. So that’s kind of a novel twist on sex discrimination law.
And there’s a similar kind of sex discrimination lawsuit at St. Joseph’s College in Philadelphia. There’s a couple of others as well. There’s a basketball player named Desmond Wells who is suing a university that expelled him. In this case, it was, I believe, at the University of Ohio, where the prosecutor actually said, you know, that he had looked into the charges against Desmond Wells and—I’m sorry, Desmond Wells, I’m sorry, I got the name wrong, but yeah, he looked into the case and he said, “You know, this is a case where the—I don’t see any grounds for filing a criminal complaint for sexual assault.” And nonetheless, you know, the college just goes ahead with this.
The Political Origins of Campus Policies [19:06]
Bob Zadek: So let’s take a step back, just a step back to look at this in perspective. What we have is we have males on college campuses that are exposed to charges that have—that must have lifetime repercussions on this young male’s ability to get a job, go to college, whatever. And so the process where the stakes are high, one would hope the process is fair, objective, non-political, and with all the safeguards one would expect when the stakes are so high. And the point of Cathy’s piece, and we will get into this, is for clearly political reasons and, most importantly, reasons that emanate from, of all places, Washington, D.C., there is a wanton disregard of constitutional rights so that—and in this case, it’s just this show happens to be about the damage to men because this is a very anti-male process, as you will see—that we have college campuses which have a process, and we are focusing on process, which has a profound anti-male bias with lifetime detrimental effects on males who get swept into the system. This is Bob Zadek. I’m talking with Cathy Young, who has written a wonderful piece entitled “Guilty Until Proven Innocent.” It was published in the January 2014 edition of Reason magazine. 800-345-5639. 800-345-5639 to join the conversation.
Now, Cathy, in your opinion, we start with—we have a process today that really has—and I’ll ask you to explain this—an anti-male bias. Now, how did this happen? Do you have any—everything of this nature tends to have a political stain on it. It emanates from politics. But we have a few minutes until we go to break. So let’s start now. How did we get here where we have—and I guess…
Cathy Young: Well, it’s a very long story. It’s—it’s something that starts in the 1980s. And you know, it’s something that did, I believe, grow out of a genuine problem, which is that, you know, there—at one point, many colleges really did sweep real sexual assaults, particularly some of the stuff that went on in fraternities and at fraternity parties. There was a lot of stuff that was getting kind of swept under the rug, and a lot of the time the young women who may have been genuinely sexually assaulted were made to feel that, you know, it was their fault because they went to this party and got drunk. So there were—there were some very real injustices that were going on.
And unfortunately, a lot of the time when we have these social justice crusades, we end up with an overreaction where we kind of—you know, the pendulum swings so far that it turns into an injustice on the other side. There’s a kind of mindset in a lot of feminism today that there really shouldn’t be a presumption of innocence in cases of sexual assault. That if the young woman says she was sexually assaulted, then, you know, to not believe the victim is a really cardinal offense. And when you have this kind of mindset being applied to these cases on campus, it certainly creates a very combustible situation. And I don’t know if you have time right now to get into Washington’s role in all this, but…
Bob Zadek: We’ll do that after break. We have to go to break in a minute, Cathy. We’ll be back in 90 seconds. Bob Zadek talking with Cathy Young. “Guilty Until Proven Innocent.” Sexual assault on college campuses: are the scales balanced against the male? 800-345-5639 to join the conversation. Back in 90 seconds.
The Flawed “One in Four” Statistic [23:26]
Bob Zadek: See, that 90 seconds didn’t take that long to go by. Thanks for staying tuned. This is Bob Zadek, host of The Bob Zadek Show every Sunday at noon at Talk 910. Thanks so much for listening. 800-345-5639. 800-345-5639 to join the conversation I’m having with Cathy Young. Cathy Young wrote a thoroughly researched article entitled “Guilty Until Proven Innocent,” where Cathy explains the kangaroo courts that—kangaroo trials that take place on American college campuses when the subject of sexual assault is before the tribunal. This is a process that, as you have seen and will see, has a profound and grossly unfair anti-male bias. The process—and the headlines of this anti-male bias is that a lot of the anti-male bias is not one which the colleges arrive at on their own, but rather it is either imposed upon them or they are—the colleges are strongly encouraged to have this anti-male bias because of specific federal legislation and because of political pressures from Washington. One might ask oneself why in the world does the federal government need to be involved in something as local as what goes on on a college campus? Why isn’t this a matter for simply local law enforcement to be involved in? Why is Washington involved? And the reason is because Washington is involved in every aspect of everybody’s life. Nothing is too local to escape Washington’s grasp. And that is today’s topic. 800-345-5639 to join my conversation with Cathy.
So, Cathy, you were explaining before the break how we got here. How we got to a position where there is—why is there not simply a fair, objective process by which these accusations, in which neither side should be presumed to be wrong or right, but rather we start with tabula rasa and we determine who’s right and who’s wrong?
Cathy Young: Right. And you know, I do want to say that this is not really solely the result of Washington’s interference, because a lot of colleges have been moving down this road on their own. You know, some of these cases happened before the recent kind of Washington campaign started. And I’ll move on in a minute to what Washington has been doing in the past couple of years. But this has been going on, again, since the ’80s at a lot of different colleges. A lot of schools and universities, under pressure from on-campus feminist activists, have been instituting these very draconian sort of sexual conduct codes.
And again, this is something that most people I think aren’t really aware of, where sexual assault or non-consensual sex is really defined extremely broadly to cover, you know, what a lot of people would kind of consider to be normal interaction where there isn’t necessarily explicit, you know, “May I do this? May I do that?” kind of questioning going on, and there’s no explicit consent, and people just sort of, you know, do things with kind of implicit signals and, you know, this sort of give-and-take that doesn’t necessarily depend on explicit communication. And this is something that a lot of these activists have been saying is really wrong because it creates the—the kind of opportunity for a lot of misunderstandings.
Bob Zadek: And it should be mentioned, Cathy, it also should be mentioned that there is something—something a bit special about these accusations which are based upon quote-unquote “non-consensual sex” or sexual activity or sexual assault, and that is that there are rarely many witnesses.
Cathy Young: Exactly. Exactly. Usually, there are two people alone in some—and often inebriated to one degree or another. So it’s basically the most classic of who you’re going to believe. And there should not be any presumption; you have to look at what facts there are and do the best you can, but without a presumption.
There are no witnesses, but there is also—because in the kind of more traditional, so to speak, rape cases, you will often have material evidence such as, you know, bruising, torn clothing if there was violence used, any sort of traces of violence or use of force. And these are cases in which, again, we’re not really talking about that. We’re talking about cases of inebriation. We’re talking about cases in which, for instance—and this is—I’m not, you know, getting this off the top of my head. It’s something that Yale University has given in a recent document as examples of the kind of thing that would be considered non-consensual activity. Where, for instance, you know, the two people are making out—and the Yale examples are all sort of very studiously gender-neutral, but, you know, in practice, this is mostly used against males in cases involving female alleged victims.
So basically, two people are sort of engaging in some sort of, you know, pre-sexual activity, so to speak, you know, kissing and so on. And at a certain point, one person, presumably the woman, says, “Oh, you know, I’m really not sure we should be doing this.” And then they stop for a while, and then the other person kind of resumes the physical advances once again. And this time, the presumed victim doesn’t actually say anything, and you know, maybe she kind of moved back a little, but, you know, doesn’t really make any move to physically get out of there. There’s no mention in this scenario that Yale has given of her being physically restrained in any way. So basically, it’s really just kind of persistent advances, you know, when a person has expressed any kind of doubt or reluctance. So really, if you’re—if you’re sort of making out and one person says, “Oh, you know, I’m really not sure,” and you continue the advances, no mention of any kind of use of physical force, you know, it was something that could be legitimately interpreted as, well, you know, the other person eventually changed their mind and, you know, deciding to go ahead with it. So now this kind of thing is classified as non-consensual sex. And again, obviously, there wouldn’t be any physical evidence of this. There’s no even requirement of any kind of physical force or coercion being used. And this is the kind of thing that ends up before these campus tribunals.
Broadening the Definition of Non-Consensual Sex [31:00]
Bob Zadek: And it should be, Cathy, I want to just mention at the risk of overstating the obvious, in matters of intimacy, everything is so—or many events are very subtle. And when you have a long-term relationship with somebody, a marital relationship, there’s all kinds of eye movements and hand movements that the other side can interpret accurately because you know your partner. But these are invariably or often almost total strangers, where there is no understanding of the subtlety. So you’re expected to interpret the most subtle activities as being consent or non-consent. It almost is impossible to make those judgments with somebody who you may have just met. And yet these cases turn on—with a bias—they turn on whether there was consent in the most subtle way imaginable.
Cathy Young: Oh, yeah, yeah, absolutely. Absolutely. I certainly agree. And some of these, when you read some of these Yale examples—I think they put out eight scenarios of possible non-consensual sex, in which I think there were maybe one or two that really did clearly involve, you know, somebody being physically coerced into sex or, you know, sexual contact going on when a person is clearly, you know, drunk to the point of actually being disoriented and incapacitated. Yeah, those are—those are pretty clear-cut. But the rest of them really do rely on things like, you know, basically cross-signals and, you know, somebody not paying close enough attention to the other’s kind of non-verbal signals and body language.
So really, there—there is a certain sense in which, you know, we’re almost kind of expecting men—again, because despite the gender-neutral language, this is primarily directed at males—we’re almost expecting men to be mind readers here. And we’re kind of saying that, you know, the woman doesn’t even really have the responsibility to firmly and clearly say, “No, I really don’t want this,” or, you know, to physically just get up and remove herself from the situation if she doesn’t want to be in it. Again, you know, in a situation in which there’s no indication of any kind of physical restraint.
And a lot of the arguments that are being made by the feminists kind of ironically end up being really patronizing to women, in the sense that we have explanations like, “Oh, well, you know, a lot of the time women are kind of socialized not to be too assertive or, you know, not to be too negative and they’re afraid to hurt somebody’s feelings.” Well, you know, first of all, I think that’s really a kind of, you know, wild overgeneralization about women. And I mean, really, if you look at even the very kind of traditional times when, you know, the norms of female behavior were much more, kind of sexist than they are today, even then, it was always considered perfectly acceptable, you know, for a woman to slap a guy’s face if he got too fresh, as they used to say in those days.
So I think, you know, this idea that women are these, you know, wilting violets who cannot decisively say no to a guy if he’s doing something that they—that the woman doesn’t like, I think really is kind of demeaning to women. And that’s another reason why I—why this concerns me. Obviously, there is the injustice to men, and I think that’s, you know, no one really wins, I think, when you pit one gender against the other like that and kind of make men the losers in this. But on the other hand, I really think that this is promoting a very, very demeaning view of women. And, you know, I think we in—in the year 2014, I think we really can and should expect women to be able to stand up for themselves. You know, not in the face of, you know, no one’s saying, you know, if a guy is threatening you with serious violence, you should resist. As, you know, as was the case at one point. You know, there was a time when we had rape laws that actually said, you know, if you—if you do not physically resist, you know, to the utmost of your ability against actual violence, you know, then sometimes there were legal cases in which basically a woman’s submission to violence or threats of violence was interpreted as consent because she didn’t fight back enough. Nobody wants to go back to those days, you know, I’m pretty sure. And that was bad. But when we now have a situation in which, you know, even clearly saying no is seen by some people as too much to ask of women, I really think we—we kind of have to ask, really, in this situation, how—how are we seeing women?
Training Materials and the Presumption of Guilt [38:01]
Bob Zadek: You know, Cathy, as an attorney, I perked up. What I learned that really caught my attention from your piece was—and again, the governmental involvement and the process of these campus trials. And one could ask yourself why in the world do colleges get involved at all in what is—what should be a judicial proceeding as opposed to simply turning the whole thing over to law enforcement? A separate topic. But what you pointed out, there is a handbook which has been federally sponsored, I believe. It was written up in FIRE, an organization that I follow quite closely.
Cathy Young: Oh, you mean the Stanford one?
Bob Zadek: Yes, where they give…
Cathy Young: Yeah, I’m not sure that that’s federally sponsored, so I don’t really want to say something that I don’t have firm information about. Yeah, this was—the handbook about how to be on a jury if you’re…
Yeah, yeah, these were training materials for—for these—for students who are going to be on a disciplinary panel in a sexual assault case. And there was text in there that was taken from a book about abuse of men. So, you know, it’s really kind of like there—there’s this presumption from the beginning that you’re going to be dealing with men who are abusive. And the text basically said that, first of all, that being logical and apparently reasonable and persuasive—logical and persuasive…
Yeah, logical and persuasive is—is basically the hallmark of an abuser, which is really kind of mind-boggling.
Bob Zadek: Now, let me just interrupt, Cathy. This is really important. But this is instruction material given to young students, college students, who are told when you are on a quote-unquote “jury” and you are trying to decide whether the male was guilty of sexual assault, when you’re on the jury, you are told that if the male—because you’re going to hear the male’s testimony—if he is logical and persuasive, that probably—that is a presumption that he’s a sexual predator. Now, how biased can that be?
Cathy Young: Yeah, yeah, there’s more than that. In the same materials, it says explicitly that in general, you should be very skeptical toward the accused male’s claim of innocence because the vast majority of these accusations are truthful. So, you know, from the beginning, you’re kind of setting up these student juries to feel that, you know, the overwhelming probability is that these accusations are true, you know? And that’s—that’s really kind of mind-boggling if you think about it because, you know, really talk about prejudging the case.
Federal Interference and the “Dear Colleague” Letter [41:12]
Bob Zadek: Now, moving on to specifically Washington’s role, because that was something that we wanted to talk about before the break.
Cathy Young: Okay. So this has been going on in various forms, you know, for—for about 20 years, I would say. This is when colleges started setting up these kind of alternative disciplinary systems for dealing with sexual assault cases. And then there were several complaints from women who felt that their cases were not handled well enough, who felt that their charges were kind of swept under the rug. Several of these cases in 2011 got taken up by the Justice Department as sex discrimination cases. And then around the same time, in April 2011, the Department of Education Office of Civil Rights sent out a letter to the presidents of colleges and universities about the handling of sexual assault cases, sexual assault and sexual harassment.
And there were several important things that they very strongly recommended. This is not quite a requirement, although now I think it really pretty much is. But one of the things that was really most important is the recommendation that the standard of proof in these cases be shifted from clear and convincing evidence, which traditionally has been, in terms of campus discipline, the standard for evaluating all kinds of complaints against students—clear and convincing evidence—and the recommendation from the federal government in 2011 was that they shift to the standard of the preponderance of the evidence. Which is really the lowest, as an attorney I’m sure you know this, this is the lowest standard of proof in a legal case that you can use, which basically really all it means is that the triers of fact, the jurors, believe that there is a slightly greater probability—like there’s a 51% probability in their minds—that the evidence favors the complainant.
So this is now the standard under which college juries are supposed to evaluate these cases. And earlier—I think—oh, last year, I think last March, there was another letter, a joint letter from the Department of Education and the Department of Justice, which once again reiterated that this standard is the only one that is appropriate and basically pretty much saying that colleges which do not use this standard, the lower standard of proof in evaluating sexual assault complaints, stand to lose their federal funds.
Bob Zadek: Now, Cathy, I want to just—what you said is so important, and there are so many, if I may, libertarian principles involved. First of all, first of all, there is no dispute that the feminist lobby is a potent political force, certainly in the Democratic Party. There is no equivalent countervailing male political lobby. It doesn’t exist. Therefore, we have one side with very, very potent political power and no opposition.
Secondly, we have the process of the federal government using the coercive power of federal grants to influence what happens on a college campus. Second principle: the federal government shouldn’t be involved.
Third principle: why in the world are colleges being dragged into becoming quasi-judicial bodies? They are not skilled in doing so. It’s hard enough to run a college without being able to run a private judicial system. But yet colleges are forced to do so, again, under the pressure from Washington.
And lastly, in matters that I have said Cathy’s point is well taken, this is not a criminal proceeding, but tell that to the male who’s accused, because to him, he has the same taint as if he was convicted of a crime. So here we have a quasi-criminal proceeding where in the criminal justice system, there are overwhelming safeguards to protect the accused. Here, there are overwhelming safeguards to ensure the accused gets convicted. So you have colleges becoming, in effect, private criminal justice systems and doing it backwards and really badly, sticking a thumb in the eye of the Constitution. And that’s what caught my attention, and that’s the takeaway from this. It’s not about the fact that one male gets the short end of it and a female perhaps gets an unfair advantage. That’s one against one, while we can care about that. To me, I’m very process-driven. And the process is so messed up, with everybody doing the wrong role. And that’s what really got me enraged with Cathy’s piece.
The Impact on the Criminal Justice System [46:53]
Cathy Young: Yeah, and I think your points are very well taken. And again, you know, this is something that the federal government is continuing to push. Actually, last month, just before the State of the Union, the White House Council on Women and Girls released a new report on sexual assault and government policy, in which they were recommending there’s going to be a new task force that is going to get like 60 days to come up with even new recommendations on handling sexual assault on campus. There’s all sorts of phony statistics that are being thrown about. And again, you know, tending very heavily toward a presumption of guilt.
If we have time, I’ll give you just one example. This report from the White House says that there’s a study showing that only 2 to 8% of accusations of rape are false. Now, first of all, even if that is true, you know, 2 to 8% is really not a very trivial figure. It doesn’t really mean that you should be looking at a charge and saying, “Oh, we’re just going to assume that it’s true because, you know, the vast majority of these charges are true.” You know, if you’re looking at like a 2 to 8% probability that it’s false, it’s really not very trivial.
But the other thing that is even more remarkable: if you look at the study that they cite as evidence of this, this was a study that looked at something like 10 years’ worth of rape charges or sexual assault charges in a large university. What they concluded was, in that study, something like 6% of the charges were definitively shown to be false. Something like 35% of charges were in fact found to be true and were prosecuted. And that leaves this large number of over 50% of charges where essentially the investigators couldn’t determine whether it was true or not. So essentially, this study looks at these results and says that, well, we’ve got a 6% rate of false charges. And then the implicit assumption from the White House is that all of the rest were actual charges. So basically what they’re saying is—and this is really quite remarkable—what they’re saying is, in every case in which you cannot definitively prove that a charge is false, we are going to make the presumption that it’s true.
Bob Zadek: Oh my God.
Cathy Young: Now what is that? It’s a presumption of guilt, right? Because it really turns around the burden of proof completely. Where instead of proving that a charge is true, you now actually have to prove that it’s false, you know, in order to have a belief in the person’s innocence. That is a presumption of guilt. And that is what I really find so scary about it.
Bob Zadek: And we here in America, we cherish—we cherish, I think this is true across the board, everybody cherishes the protections given to us in the criminal justice system by the Constitution: the right to confront your accuser, the right to have a trial by jury of your peers in a criminal case, the presumption of innocence, the high burden which the state has to prove guilt, the presumption of innocence. How we can take all of those cherished parts of what it means to live in America and tear them up and stomp them into the ground and say on college campuses, all of those rules that are part of America’s DNA get torn up and thrown away in the special case where there is a young man and a young woman who disagree on what happened on a night when both parties had emotional involvement and there may have been alcohol involved and who knows what else? That in that special circumstance, we’re going to decide that none of the protections in our Constitution apply and we are going to stomp on the rights of the males.
Now, nothing Cathy and I have said in any way diminishes the significance and the ugly nature of sexual assault.
Cathy Young: Oh, absolutely not. Yeah.
Bob Zadek: This is about process. And there’s nothing that ought to deny a male or a female the procedural safeguards on college that you have once you leave the halls of ivy. And that’s—that’s the message of this show.
Cathy Young: Yeah, and one quick point that I think is important. We have a couple of minutes left, I think.
Bob Zadek: We have 30 seconds, Cathy. You get the last word.
Cathy Young: Okay. I think there’s also a real concern, and that was another concern of mine, that there’s going to be a bleed-over, so to speak, from this into the real world. Because we have students who are—you know, a lot of people are going to college now. And if this is how they view sexual assault in college, how are they going to think about it if they ever end up in a criminal jury in the real world? You know, that is I think another serious concern to think about. Is this going to spill over into the criminal justice system?
Bob Zadek: Cathy, thank you so much for your piece. Thank you so much for giving us an hour of your time this afternoon. Cathy’s piece is “Guilty Until Proven Innocent” in the January 2014 edition of Reason magazine. I’ll be back in 90 short seconds with John Rothmann. We are going to discuss school vouchers, a wedge issue in the 2014 elections. Who’s right and who’s wrong? You get the vote, you get to participate. 800-345-5639. Back in 90 short seconds.
The Debate Over School Vouchers [53:22]
Bob Zadek: Welcome back to The Bob Zadek Show. I’m your host, Bob Zadek, every Sunday at noon on Talk 910. Thanks so much for listening. 800-345-5639. 800-345-5639 to join the conversation. Thanks so much for staying with us on Super Bowl Sunday afternoon. I’m happy to welcome back into the studio, command performance, return engagement, John Rothmann. John has been good enough to join me in the studio on this Sunday afternoon. The topic that I thought we’d have a great time talking about is the growing contentious wedge issue in American politics of school vouchers.
Now, school vouchers—the issue of school vouchers is a subset of the issue of what is commonly called school choice. School choice is a policy issue in America, probably started by Milton Friedman. Milton Friedman was a strong advocate of breaking the public school monopoly, which the federal government had all of the powers over, and of exposing the important process of public school education to private choice, so that parents and students—but I’ll say parents—can pick the vendor who’s going to be providing the education to the children. And that is to encourage charter schools, private schools, and homeschooling, all other alternatives so that parents can pick and choose how to educate their children. Needless to say, when you are attempting to break up a monopoly, whether it is the U.S. Steel trust, whether it is Standard Oil or any other monopoly—dare I say Microsoft? But they got broken up by the forces of the market—if you are seeking to undo a monopoly, the folks who benefit from the monopoly are not all that happy about it. In this case, the threatened group of people who are threatened by breaking up the monopoly are the teachers’ unions, the teachers, administrators, and all of those government types who benefit from being the only ones to provide public education. Think post office, if you will.
So, school vouchers—here’s the issue on school vouchers, just so you can follow the discussion between John and myself. The system of school vouchers starts with the process that rather than federal government using tax dollars to give money to public schools, so that teachers are government employees and administrators are government employees, rather than the government giving the money directly to the schools, the government will give the money to the parents. And in the words of Lamar Alexander—we’ll get to him in a moment—the government will pin $2,000 onto the clothing of the student, and the student will spend his voucher, his coupon, either in the public school or in a private school, wherever the student wants. The effect of that is to take away funding from the public schools and give it to private schools, parochial schools, or whatever. And the question is: is the process of school vouchers, which I dare say is growing, but it’s still relatively small by percentages, is that healthy for American education? John, are you generally supportive of school vouchers, or is it a process that you see to be damaging to the goal? And we’ll just—let’s stipulate and we agree on the goal. The goal is to get American children educated in the most efficient and objective and highest quality way so they become able to be participating citizens in American democracy.
John Rothmann: Okay, my answer is first, I’ve always opposed the school voucher program. I believe that it is destructive to public education. I believe that public education is the backbone of American democracy, and if you gut public education, we’re in deep trouble. Let me explain to you what Lamar Alexander’s bill would do. It’s important for people to understand this. It would take $24 billion, or about 41% of current federal spending on elementary and secondary public schools, and allow states—not individuals, but states—to decide how that money would be spent. Now, for each eligible child, based on family income, we are told an average of about $2,100 of federal money would be allocated. Now, I happen to be fairly familiar with this subject, and I do not know a school, parochial or private, where you can spend $2,100 and be able to get an education. Most of the private schools here in San Francisco have tuitions that run anywhere from $30,000 to $15,000. Some of the Catholic schools are a little bit cheaper, but they are constantly in need of money, and as you know, they’ve been closing these schools because they can’t afford to keep them open. The voucher program, in my judgment, also is a very destructive one in terms of its approach. Not only is it not affordable, not only is it going to hurt public education, but I disagree with you profoundly—which I know you’re happy about—on who the lobby is for public schools. My kids went through public school, Bob.
Bob Zadek: So did I.
John Rothmann: And they got a tremendous—my younger son is still in a public school, getting a tremendous education. I encourage in public schools more parent involvement. There is more fundraising going on in all the public schools because there isn’t enough money. And as for the teachers’ unions, I don’t view the teachers’ unions as the great enemy. Most teachers that I know, and I know a lot of teachers, are outstanding individuals who care deeply. Are there abuses in the system? Yes. But I would remind you of how many schools where vouchers have been used have been closed because they are incompetent and unsupervised and with terrible problems. So I have to tell you, when I look at Lamar Alexander and the Republicans, I think they’re dead wrong. One other quick point: the argument that Lamar Alexander is in part making is that this will help minorities, that minorities will be enhanced in terms of their educational opportunity. I have to tell you that I disagree profoundly with that, and all you have to do, Bob, with all due respect, is take a look at what’s happening in Oakland. I mean, this is—this is a tragedy, because in the end, what will strengthen America is a strong, vital public school system that is workable, affordable, and encourages the best people to go into teaching.
Public Education vs. Private Choice [57:58]
Bob Zadek: Can you say that one more time, slowly?
John Rothmann: 800-345-5639.
Bob Zadek: 800-345-5639 to call and tell John that you agree with me, or to tell me you agree with John. 800-345-5639. John, about 85 or 86 times in your comments, you talked about how important public education is. I would agree with one word of deletion: “public.” Let’s start with—let’s drill up. Let’s start with education is important. Now, once we agree on that—and we agree on that, of course we do—once we agree that education is important, what makes public education—that is, education where the vendor is government—what makes that per se, per se better than the alternative, which I guess is private education? It seems to me we want quality education, and in America, we have—it is part of our gut that in a competitive environment, whether it’s the Super Bowl or whether it’s a consumer product or anything else, the best determiner of what is best is the marketplace.
John Rothmann: Rubbish. Nonsense. Absolutely ridiculous. That isn’t true, Bob. I want you to think logically.
Bob Zadek: I thought I was, but go ahead.
John Rothmann: How silly of me. By the way, ladies and gentlemen, Bob Zadek and I are good friends. We’re having a lot of fun here.
Bob Zadek: How silly of me. I thought I was being logical. I lost my head, John. Sorry.
John Rothmann: Completely illogical, because I could cite this in many areas where you think you’re spending money and you’re getting something and you’re not. Look, let me be very clear about this. Let’s assume I wanted my son, who is 15 years old, to go to one of the best private schools here in San Francisco. It would cost me at least, Bob, $40,000 a year. Now, if I have choice, if that’s what this is all about, choice, so Bob, are you going to provide me $40,000 to send my kid to a school? And I’m going to tell you something: the answer is no. Lamar Alexander is proposing $2,100 if you meet the requirement. I’ll give you another example of what bothers me about this. Who really pushes for vouchers? Private religious institutions. The Catholic schools in particular have pushed very hard for vouchers. Three times they put this measure on the state ballot, and three times the people of California said no. I happen to believe in a firm separation of church and state. I believe that the minute you get into this voucher question, what you have is the opportunity for religious institutions to receive public funding. And I’m going to make one other quick comment. I said that this would take, if Alexander’s bill is passed in the Senate, $24 billion, 41% of current federal spending on the elementary and secondary level. You gut public education if you take away that money, pure and simple. So what it does is it doesn’t open up choice; it limits choice. And what we may see then is the creation of schools which are substandard because there will be no real supervision. I believe, and I have—by the way, just so you know this—I have a Master of Arts in teaching, I have a secondary teaching credential from the state of California, I’ve been the president of the Washington High School Alumni Association—I hate to say this—for 40 years. I have been deeply involved on every level of my kids’ education in terms of PTAs and so forth. I have researched this, seen it, watched it, battled with it over the voucher propositions that have gone on the ballot. They’ve lost, Bob, because they fail the ultimate test. They don’t make it better; all they do is take money away from public education.
The Pell Grant Model and Market Competition [65:11]
Bob Zadek: My favorite—my favorite economist, and two-time guest on my show, Don Boudreaux at George Mason University, gave—in writing about the area of vouchers, he drew, John, an interesting parallel. He said, imagine a system of supermarkets where food was provided not by me going down to Mollie Stone’s or Safeway or whatever supermarket I want, based upon price, quality, cleanliness, service, and the like, but rather you had government-owned supermarkets as the only place to buy food. And imagine…
John Rothmann: But that isn’t the case in education. I’m sorry, no, but that isn’t the case. You have a choice in this country. If you want to send your kid to a private school or a parochial school, you have that option. There is no monopoly here.
Bob Zadek: You have the option if you’re rich. You don’t have the option…
John Rothmann: Excuse me, you’re mistaken again. You have the option of applying, and there are plentiful scholarships in private schools and in Catholic schools in particular. And most of the evangelical Christian schools provide great scholarship opportunities as well. The same thing applies, by the way, in public universities. Take colleges. You have a choice of going to Harvard and spending $50,000 a year or going to UC Davis and probably getting away room, board, and tuition at $20,000 a year. We have choice, Bob. What this does is to take away choice for millions of Americans who rely on public education as their vehicle and all of the advantages of public education. You take away 41% of funding for public education, give it to the parents at a $2,100 voucher when you can’t afford to go anywhere for 2,100 bucks. Bob, this is unrealistic. That’s why it will not happen, and if it did, God help this country.
Bob Zadek: John, you didn’t answer my question as to: let’s imagine a world with no public education whatever.
John Rothmann: You know what, Bob? Let’s imagine a world in which there’s no war, where we have no defense budget. I don’t deal in “let’s imagine.” I deal with what’s real.
Bob Zadek: With no Democrats.
John Rothmann: No, no. In your case, you would not want Democrats or Republicans; you just want libertarians. Good point. And I would point out to you that is not realistic either.
Bob Zadek: But as we get rid of—as a world of only libertarians, let’s go incrementally. First, get rid of the Democrats, then we’ll get rid of the Republicans, but let’s do it incrementally.
John Rothmann: You see, your political bias is being revealed in this program.
Bob Zadek: We have one quick caller. We have Julie in San Mateo. Julie, you have a couple of seconds. What’s on your mind this afternoon?
Julie: Well, first of all, I worked for the San Francisco school system.
John Rothmann: Uh-oh.
Julie: And not everyone is credentialed. Not all schools are good like Washington High School. You need to go to the other schools where the kids are not getting educated. And as far as elected board members, most of them are backed by the union. The union runs the schools, not California. And…
John Rothmann: Well, let me answer you and tell you that I spend a lot of time not just at Washington, but I’m very familiar with the public schools here in San Francisco. Most of them do an outstanding job, and I don’t care where you go in terms of public education. I take a look at a school like Mission, which was really in very bad shape, which came back because of parent support—and I don’t know if Judy’s listening, but her—her role there was critical. You can go out to a school like Lincoln, which once lost its accreditation and is now one of the outstanding schools in this country. And I’ve dealt with middle schools as well because my children went through that system. And I know there are problems, but I cannot believe, nor will I accept, that the idea of a voucher system will improve the system. One other quick point: you’re right, there are people who are not credentialed because they’re brought in on special credential, as you are very familiar, because they offer a particular talent or ability that is needed.
Julie: No, very often that is the case. You didn’t teach in the school where I did, did you?
John Rothmann: Well, I would love to—you haven’t—you don’t have the background that I have.
Julie: You don’t have the background with the union.
John Rothmann: Yes, I do. I—beg your pardon, I do understand the unions. I understand what they do and how they do it, and there are deficiencies—well, I do—and there are deficiencies without any doubt, but I will tell you that on balance, they do one heck of a fine job.
Bob Zadek: Julie, thank you so much for your call. We appreciate you being a listener. And thank you for joining the conversation, Julie. We really appreciate it.
Voucher Costs and Union Influence [72:49]
Bob Zadek: Okay, John, so in summing up, I’ll—I’ll say my bit for 20 seconds, then you get the last 20 seconds. I am not anti-public education per se. I am simply pro-increased competition. Anything that creates a competitive environment so that nobody can take their job for granted, I support. John, you get the last word.
John Rothmann: Competition exists. There are public schools, private schools, parochial schools. Your envisioning of that is absolutely essential, but I would remind you that public education is the backbone of American democracy, and that’s why I support it.
Bob Zadek: Thank you so much for listening to the Super Bowl of American politics, John and Bob discussing school vouchers. I’ll be back next Sunday. Thanks so much for listening. Go Niners!