This article originally appeared in The National Review on May 14, 2014.
Sexual harassment has been a fraught political issue in the United States for decades. It goes in and out of focus. Right now it is very much in focus, largely as the result of a new report from the White House Task Force to Protect Students from Sexual Assault. The report, Not Alone, was produced at breakneck speed after President Obama established the Task Force on January 22. That suggests, among other things, that the Task Force members didn’t waste much time on research: They knew what they wanted to say before they convened.
Not Alone is causing some controversy, mainly because of some very broad and surely misleading declarations. But before taking those up, let’s glance back at an idea that has had several previous moments of celebrity.
In the beginning was Title VII of the Civil Rights Act of 1964, which brought forward the idea that some work environments could be “abusive.” While the law lists sex — along with race, color, national origin, and religion — as a category on the basis of which employers are forbidden to discriminate, no one at the time seemed to be thinking that much about bosses saying sexual things to workers or coming on to them. The Supreme Court first gave legal life to that idea in 1986, when it held that sexual harassment was a form of workplace discrimination.
In 1992, the Court extended this to schools. And in 1993, it said employers could be sued for sexual harassment even by workers who had suffered no “psychological injury.”
The Court also entered the story in another important way. The September 1991 confirmation hearing on nominee Clarence Thomas was dominated by the testimony of Anita Hill, who claimed that Thomas had harassed her on the job at the Department of Education and later at the Equal Employment Opportunity Commission. Thomas was, of course, approved by the Senate anyway, but the hearings prompted Congress to amend the law to allow punitive damages in sexual-harassment cases.
Higher education was no stranger to the topic. Even before sexual harassment started evolving as a legal doctrine off campus, it was aggressively taking shape as a set of speech codes at the nation’s colleges and universities. My organization, the National Association of Scholars, weighed in with a warning in 1993 that the sexual-harassment doctrine appeared to be, in some key respects, at odds with academic freedom. Even back then, college administrators were making expansive claims, including, “Sexual harassment can be as blatant as a rape or as subtle as a look. Harassment . . . often consists of a callous insensitivity to the experience of women.”
Definitions this broad lent themselves to being used as bludgeons. Careers were ruined on the basis of unsubstantiated allegations.
The sexual-harassment doctrine has had two major public airings since Anita Hill. Senator Bob Packwood, a Republican from Oregon, resigned in 1995 after allegations surfaced that he had harassed and abused female staffers and lobbyists. Then, of course, came the cascade of President Bill Clinton’s scandals, which resulted in the advocates of strict sexual-harassment codes beating an ignominious retreat. They favored President Clinton for many of his policies and couldn’t bring themselves to demand that he be held to account for his personal behavior.
The next big chapter in sexual-harassment rules came last year, when the Civil Rights Division of the Department of Justice and the Office of Civil Rights at the Department of Education began issuing rules that dramatically lowered the standard of evidence needed in adjudicating campus allegations of sexual harassment. Under the new rules, a “preponderance of evidence” was sufficient to find someone guilty. That meant that in cases where the evidence split nearly down the middle as to who was telling the truth, with just a slight edge for the accuser, the college could and should assume the accused is guilty.
Technically, the balance could be the merest fraction in favor of the accuser: 50.00001 percent would do the trick. But, of course, in practice the approximations meant nothing. The rules are effectively a mandate to assume guilt absent overwhelming evidence of innocence, and as the rules get applied, we’ve seen cases where even dramatic exculpatory evidence has been ignored.
The new White House report, Not Alone, follows the earlier lowering of standards of evidence with a demand for — what else? — further lowering. The report begins with the dramatic and much-disputed declaration that “one in five women is sexually assaulted in college.” This factoid derives from an extrapolation of a survey that asked women, among other things, whether anyone had ever “attempted” to force a kiss on them, or whether they had ever had a sexual experience while drunk. Researchers retrofitted the “yes” answers to the category of “sexual assault.” That doesn’t mean the number is necessarily wrong or off the scale, but it deserves to be approached with skeptical care. The FBI’s Uniform Crime Statistics, which no doubt undercounts the instances of assault, puts the figure at one in 40.
We hear a lot of complaints on campus these days about “slut shaming,” which is the now-discountenanced practice of looking with disfavor on promiscuity. We are in apparent need of a category of “humbug shaming,” which is the rude practice of pointing out that the premise isn’t true.
At the center of the White House report is praise for “New Investigative and Adjudicative Protocols,” including something called the “single investigator” model, which would empower a single campus official to: “interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses — and then either render a finding, present a recommendation, or even work out an acceptance-of-responsibility agreement with the offender.” Critics are rightly alarmed. One calls it the White House “War on Men.”
It took our civilization a few thousand years to achieve a separation of powers that unmixed the authority of the police to investigate from the authority of prosecutors, defense attorneys, judges, and jurors and to put the presumption of innocence and the right to face one’s accusers at the center of the proceedings. It has taken the higher-education establishment and the White House Task Force just a few months to figure out that all that fuss was unnecessary. One enlightened administrator can do the whole job.