The Black Men Who Identify with Brett Kavanaugh Understand the Stakes

USED: 10/13/18
(NRO Illustration: Elijah Smith; Andrew Harnik/Pool/Reuters)
A response to Jemele Hill

Earlier today, freshly minted Atlantic writer Jemele Hill published a piece that broke new ground in the Brett Kavanaugh debate. She revealed that, in her experience, black men were more sympathetic to Kavanaugh than she anticipated:

On Tuesday night, I was in an auditorium with 100 black men in the city of Baltimore, when the subject pivoted to Brett Kavanaugh. I expected to hear frustration that the sexual-assault allegations against him had failed to derail his Supreme Court appointment. Instead, I encountered sympathy. One man stood up and asked, passionately, “What happened to due process?” He was met with a smattering of applause, and an array of head nods.

Hill says this support makes a “twisted kind of sense,” because, “Countless times, black men have had to witness the careers and reputations of other black men ruthlessly destroyed because of unproved rape and sexual-assault accusations.” But there’s nothing “twisted” about it. Their experience highlights the vital importance of due process and the presumption of innocence.

In fact, according to a report she cites, while black men account for 22 percent of sexual-assault convictions, they account for a whopping 59 percent of exonerations.  And that’s just criminal convictions and exonerations. Hill doesn’t even delve into the ongoing scandal of campus Title IX adjudications, where the stakes, like those of a judicial confirmation hearing, aren’t criminal but nevertheless remain high: An accused student’s enrollment in school is often on the line.

Last September Emily Yoffe wrote a troubling essay (also in The Atlantic) detailing how preliminary evidence indicates that campus courts are disproportionately punishing black men. These tribunals, animated by the very “believe survivors” ideology of Kavanaugh’s opponents, are imposing terrible consequences on young African-Americans, often stemming from morning-after regret amplified by racial differences. Yoffe quotes Harvard Law professor Janet Halley:

“American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women,” followed eventually by the revelation “that the accused men were not wrongdoers at all.” She writes that “morning-after remorse can make sex that seemed like a good idea at the time look really alarming in retrospect; and the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.” She has observed the phenomenon at her own university: “Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents.”

Jeannie Suk Gersen, also a Harvard Law professor, has written extensively on Title IX and notes that campus administrators and faculty members who work on campus adjudications have told her that “most of the complaints they see are against minorities.” The federal government — which, under President Obama, mandated reduced due-process protections for accused students — has been remarkably incurious about the racial effect of its policies. But individual schools have been subject to race-discrimination complaints, and the numbers are stunning.

At Colgate University, for example, from 2013–2014 black students were 4.2 percent of the population, but “black male students were accused of 50 percent of the sexual violations reported to the university, and they made up 40 percent of the students formally adjudicated.” Across three academic years, “black students were accused of 25 percent of the sexual misconduct reported to the university, and made up 21 percent of the students referred for formal hearings.”

The bottom line is that opponents of Kavanaugh didn’t just want to stop Kavanaugh, they wanted to create a cultural moment that many black men are very wise to be wary of. “Believe survivors” is a slogan that resonates far beyond one single judicial confirmation. It’s the slogan of campus “justice” that all too often echoes the injustice of America’s racist past.

It is true that, as Hill notes, Kavanaugh was more powerful than the young black men who face similarly terrifying accusations that can ruin their lives, but the answer isn’t to convince black Americans that Kavanaugh should face the kind of “justice” that they have faced far too often throughout our nation’s history. It’s to convince America that due process and the presumption of innocence belong to all of us, no matter our social station, even when prison isn’t at stake.

Contra Hill, then, black men aren’t “missing” anything. They’re getting a fundamental point: If even a man as powerful as Kavanaugh barely escaped uncorroborated accusations, what chance would they stand?


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