Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.” That document followed up on a previous open letter signed by 28 members of the Harvard Law School faculty in 2014 arguing that the updated sexual assault policy recently installed at Harvard was “inconsistent with some of the most basic principles we teach” and “would do more harm than good.”
I recently profiled Gersen and her colleagues in a piece for the Chronicle of Higher Education recounting their effort to defend the “most basic principles we teach” against a movement that is working tirelessly to subvert them. It is significant that they speak from within that movement—the feminist movement—not just because this gives them a margin of credibility within a discourse that tends to assign standing on the basis of identity, but also because their intimate knowledge of the antecedent and ongoing struggles within feminism helps them to understand the intellectual roots of what is happening, and where those ideas are taking us.
Though the four women find themselves opposed to visible tendencies within the movement, no one can doubt their standing within it. They are important theorists and practitioners who have made crucial contributions to historic feminist reforms. They represent a strain of longstanding internal critique that is native to the movement itself. Collectively, they have a stern message about the present course of the movement: As Halley, writing in the Harvard Law Review about a case in which a loud demand for punishment accompanied indifference to the guilt or innocence of the accused put it, “We have to pull back from this brink.”
Each of the women I profiled arrived at their principled opposition to what they came to regard as the movement’s excesses through different paths. Nancy Gertner’s trajectory is particularly instructive. She was a member of a pioneering cohort of women at Harvard Law School, the second class to accept women in large numbers. She played an important role in securing a host of crucial reforms that made the law more protective of victims of domestic and sexual violence (such as removing the force requirement for rape) and became the third woman named to a federal judgeship.
But after a lifetime in service of the feminist cause, she took on the case of a friend whose son she came to believe had been wrongly convicted of rape and won his acquittal on appeal. She became the target of the outrage culture of that time. When confronted by protesters at a symposium, she asked if it mattered to them that she believed the acquitted to be innocent. The answer she received made it clear that the guilt or innocence of the accused was a matter of indifference. What mattered was that she had sided with the enemy.
When I spoke with her in her office in Cambridge, Massachusetts, Gertner acknowledged that activists seeking to combat sexual violence had resorted to extreme measures out of a justifiable sense that they were addressing a harm that had been ongoing for decades without remedy. “Exhorting people had not worked, nothing had worked,” she said.
But she also described with astonishment a training session she had attended in which the concept of “trauma-informed investigation” was taught. “There was one slide that was extraordinary—it said that if there is a story with inconsistent details that seem to shift from one telling to another, that reflects post-traumatic stress disorder, period. I thought, oh my goodness. Well, of course it might. It might also reflect lying! That they would present one side without even considering the other was extraordinary to me.”
We should pay heed to the chagrin that Gertner expresses here. It is the chagrin of someone who has deprived a great many people of their freedom in her capacity as a judge and who always did so in the manner we want our judges to do so: in full recognition of the awesome weight of that decision, and of her duty to be concerned about whether the person so sentenced had been afforded a fair hearing prior to the determination of guilt or innocence. She saw in the concept of trauma-informed investigation the transformation of a valid insight into what might be so, turned into a dogma of what must be so. Here was a concept with the power to corrupt the whole system of criminal investigation marching largely unhindered into the institutions.
Whether judicial powers to surveil and punish are suitable instruments for the pursuit of an emancipatory feminist vision has always been a hotly contested debate within feminism itself. What has long been debated in theory has now been released into the world through interventions aimed at changing that world through an embrace of such instruments. “Feminists now walk the halls of power,” Halley notes in the introduction to her co-authored 2014 book, Governance Feminism. The movement has transitioned, in Halley’s term, “from the megaphone to the gavel,” and must, Halley argues, take on an ethic of responsibility and scrutinize the effects of what they have wrought.
Together, these professors’ work on the new campus sex bureaucracy, consisting of law review articles, open letters, manifestoes, and op-eds written both singly and jointly, is an exemplary instance of the project Halley proposed. That work looks closely at the empirical reality of what has been wrought and reaches a conclusion about its implications. Taken as a whole, the work provides a kind of Rosetta stone of the broader social justice movement of which its subject is a part. The work is sober and restrained and presented without drama precisely because the story it tells is so upsetting and implausible to outsiders, and thus prone to accusations of hyperbole. The gravamen of their work is that, whatever their stated or actual intentions, Title IX feminists are working to superannuate the meaning of consent and embed within the criminal law a principle, subversive to the foundation of the law, that the feelings of the accuser determine the course of the law without reference to any other material fact. As Catharine Mackinnon, the progenitor of the school of feminism from which this movement proceeds, once put it, “Politically, I call it rape whenever a woman has sex and feels violated.”
Title IX activists, including those operating within the Office of Civil Rights in the Department of Education—from whence they issued a letter in 2011 threatening to cut off federal funds from universities who did not get tough on sexual assault—have put in place a system in which it is “commonplace to deny accused students access to the complaint, the evidence, the identities of the witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses,” as Gersen described it in The New Yorker magazine. Though administrative law proceedings routinely rely on constructions of due process that fall well short of those pertaining to criminal proceedings where the freedom of the accused is at stake, in practice the totality of measures adopted by a great many colleges made mounting a defense all but impossible.
The system promulgated a definition of sexual misconduct so expansive that it “plausibly covers almost all sex students are having today,” as Gersen wrote in an article in the California Law Review. It required investigators to start by believing accusers (rather than starting from a place of impartial neutrality), instructed them against using a “reasonable person” test to constrain their judgment of whether sexual conduct regarded as unwelcome constitutes harassment or assault, and required them to reach a finding of wrongdoing if they felt confidence that misconduct had occurred greater than 50+1 percent. It housed the function of adjudicating individual cases within the same office tasked with ensuring compliance with federal government mandates demanding stronger enforcement—aligning incentives in ways hostile to the accused.
A system so designed is “overwhelmingly stacked against the accused,” as Gersen and her colleagues wrote in their original petition. “In this very large continuum of unpleasant interactions that can happen, at some point you draw a line and say, ‘These are consensual, these are not consensual,’” Gersen told me. “Lots of people disagree about where to draw the line. But most people would want to draw a line so there is such a thing as consensual sex.”
Gersen naturally speaks in the sinuous idiom native to her lawyerly temperament and training, which has the effect of softening the impact of her conclusions while nonetheless stating them forthrightly. It takes a moment of reflection to notice that Gersen has just implied that the Title IX system has so attenuated the definition of consensual sex as to abolish it in practice. And yet it is in fact what has happened within the domain that campus activists have secured for themselves, and in which they have been conducting an ongoing experiment in a world beyond due process—an experiment they have sustained for nearly a decade.
According to Gersen and Halley, who have extensive experience advising accusers and accused within the system, the tribunals are typically not adjudicating cases that conform either to legal definitions or to common intuitions of what rape and sexual assault entail. “Everyone who works in the Title IX world,” Gersen told me, “if you talk to them about the nature of these factual claims, for the most part we are not talking about accusations of forcible or coercive conduct.”
Federal judges have left no ambiguity about whether the conduct of the campus sex crimes bureaucracy is “consistent with the most basic principles we teach.” In nearly 200 cases, students suing their universities for violating their due process rights in campus proceedings have obtained favorable rulings or settled out of court, vindicating what Gersen and her colleagues have maintained from the outset would be an inevitable outcome. And yet when Gersen and her colleagues roused 28 of their peers in opposition to a policy that the courts were sure to repudiate back in 2014, they stood alone in all of American academia.
It’s worth lingering for a moment on this bizarre tableau. Here, we had a group of professors at the most prestigious law school in America making standard critiques of reforms whose ends the professors shared but whose means were marred by deficiencies that any minimally informed person could see, and that experts like themselves were authorized to identify. These deficiencies would in practice produce hundreds of unjust rulings and undermine the legitimacy of the effort at reform itself. Those professors said aloud what few of their colleagues would have disputed in private. Yet they nonetheless found themselves isolated, unable to influence the course of events beyond their own subsection of the university and were accused of being “on the side of rapists,” as Gersen put it. Gersen and her colleagues wrote up their own version of a policy that the Department of Education’s Office of Civil Rights found to be compliant with their demands—one that balanced the right of the accused and the accuser in a manner more likely to survive the scrutiny of federal judges—and to actually just be more fair. Harvard University chose to quell their protest by applying this policy to the law school, while retaining the policy that 28 of their law faculty had declared publicly to be in violation of basic principles of law.
“To stand up for fair treatment became something considered brave,” Gersen told me. “That was so amazing. People kept saying, ‘This is so brave of you!’ This is what we are trained to do, which is to stand up for fair procedures. It’s the most basic, boring, and vanilla things that lawyers do,” Gersen said. “And yet the idea was, ‘Wow, this is just really sticking your neck out.’ That’s when you knew the political environment had become extreme—when the most banal thing a lawyer says requires courage to say.”
In the interviews I conducted with Gersen, Gertner, and Halley, they all made explicit the astonishment and chagrin latent in certain passages of the work they’ve produced analyzing the sex bureaucracy. They modeled what it means to occupy a third position—the correct position—in the broader culture wars of which the sex bureaucracy was a paradigm case.
How the Harvard Law School faculty came to be seen as out on a perilous limb for defending “the most basic principles we teach” is a much larger part of the submerged history of our time than is generally understood. It is a story with which the rise of Donald Trump is fatally intertwined, but it is in fact a story that takes precedence—both temporal and logical—over the anarchic and pathological rise of the demagogue occupying the White House.
The story, I will argue in this and subsequent columns, is about the rise and bid for hegemony of a new ideology. This ideology is a successor to liberalism. It brandishes terms that superficially resemble normative liberalism—terms like diversity and inclusion—but in fact seeks to supplant it. This new regime, in which administrative power has been fashioned into a blunt instrument of deterrence, marks off a crucial distinction—between the liberal rule of law, and the punitive system of surveillance rooted in identity politics known as “social justice.”
Gersen and her colleagues are mostly treated as respected interlocutors even by activists whose arguments they have been dismantling. This had much to do with their histories and affiliations, which they would often mention in the course of their work. They were neither polemicists nor provocateurs. They did not identify as “heterodox” or flaunt their engagement with “dangerous ideas.” They instead presented themselves as what they were: authorized guardians of the rule of law standing up for “the values we teach every day.” They do not linger too long on by whom those values are threatened, but they are firm in their insistence that the threat against them, which extends far beyond campuses, must be repulsed.
You can help support Tablet’s unique brand of Jewish journalism. Click here to donate today.