The Decline of Title IX

A poster in support of Christine Blasey Ford hangs on a Yale Law School sign, New Haven, Conn., September 27, 2018. (Reuters/Gabriella Borter)
Yale Law School’s investigation of Jed Rubenfeld makes a mockery of law.

Perhaps the only bipartisan consensus during the Kavanaugh hearing was that allegations of sexual abuse are very serious. So serious, in fact, that they deserve careful and meticulous judicial review. But the Senate Judiciary Committee conducted itself these past weeks with such theatrical pomposity in part, it seems, because the investigation was less preoccupied with finding truth, than with redistributing power.

Many were quick to point out that Kavanaugh’s was not a criminal trial; it was a job interview. According to a possible application of this logic, therefore, standards of truth-testing could be lower. But surely such a severe accusation still necessitates an equally serious judicial process?

Not so, apparently. Indeed, failures in decorum, truth-seeking, and due-process rights have also haunted Yale Law School’s ongoing “investigation” into the alleged misconduct of Professor Jed Rubenfeld. As with Kavanaugh, this is not a criminal investigation. This time it’s Title IX.

Title IX is the federal law passed in 1972 intended to prohibit sex discrimination, but which has since become embroiled in the bitter campus battle over free speech and due process. Rubenfeld has written controversially and critically about Title IX in the past. More recently, however, he and his wife, Amy Chua, a fellow Yale law professor, came under public scrutiny after a number of allegations were made about their professional conduct, including that they had made comments as to Brett Kavanaugh’s preference for attractive female law clerks, though Chua has denied these claims categorically.

The latest scandal came earlier this month, when Slate reported that two female students had come forward separately with Title IX allegations against Rubenfeld. The allegations remain, somewhat mystifyingly, vague.

The first complainant [pseudonym, Linda] says that Rubenfeld arranged an 8 p.m. meeting, made comments on her appearance throughout the year, called her on her cellphone, and asked if anyone in their class had ever been raped.

The second complainant [pseudonym, Jennifer] said Rubenfled once asked her about his appearance, then used her answer (that he was growing out his beard) as a discussion starter for a class on “professional harassment.” He made reference to this several times, which made her feel uncomfortable.

It appears both students also socialized and drank alcohol with Rubenfeld. The Slate report concludes that this behavior is probably somewhere between “flirtation,” “line-crossing,” and “harassment.” But, more importantly, that the consequences of coming forward with such complaints might jeopardize the young women from getting clerkships for which they require Chua and Rubenfeld’s help.

Ah. Power. Therein lies the problem. Dylan Matthews, of Vox, tweeted thus:

But back to exactly what is being investigated. In a statement to the Guardian, Rubenfeld said:

In June, Yale University informed me that it would conduct what it terms an “informal review” of certain allegations, but that to preserve anonymity, I was not entitled to know any specifics. As a result, I do not know what I am alleged to have said or done. I was further advised that the allegations were not of the kind that would jeopardize my position as a long-tenured member of the faculty.

For some years, I have contended with personal attacks and false allegations in reaction to my writing on difficult and controversial but important topics in the law. I have reason to suspect I am now facing more of the same. While I believe strongly that universities must conduct appropriate reviews of any allegations of misconduct, I am also deeply concerned about the intensifying challenges to the most basic values of due process and free, respectful academic expression and exchange at Yale and around the country.

As for the form of this “informal review,” the following letter reportedly sent to Yale Law School alumni (according to Above the Law) illuminates how this might take place:

YLS has hired an outside investigator to look into Professor Rubenfeld’s conduct, and folks should reach out to her if they have something to share. The sooner the better, and it’s possible to talk to her in ways that preserve anonymity (see details below).

Such details included:

You can also change your mind at any point about the level of anonymity at which you provide information; she has said that even for people who agree to have their name or identifying information used, she will circle back to confirm before sharing it. There is enormous flexibility here.

As for the “scope and process” of the investigation:

Scope and process: Jenn’s [the investigator’s first name] jurisdiction is over issues regarding female students as well as other types of behaviors that have given rise to concern over the years. It seems she’s been tasked with understanding whether Professor Rubenfeld contributes to a hostile environment for students, generally. There is an understanding that certain behaviors might well not be unique to him or to YLS, but that does not make them OK.

Meanwhile, Slate reported that they had spoken to “over a dozen” alumni, students, and staff. They concluded:

The picture we got from these conversations is not one of straightforward abuse but rather a fraught and uncomfortable situation full of insinuation and pushed boundaries that can make learning difficult and has the potential to push women out of the pipeline for the most prestigious and competitive areas of the law.

And noted:

This type of behavior, which is frequently dismissed as “borderline” or “creepy” and not worth making a formal fuss over, can have very real consequences. The two main obstacles that made it difficult for Linda and Jennifer to report this behavior were a Title IX process that seems incapable of tracking multiple complaints against a single faculty member and this particular faculty member’s connection to a clerkship process that makes students enormously reliant on pleasing certain professors.

From what we can tell so far in the Rubenfeld investigation, the primary concerns are the subjective experiences and power imbalances of female YLS students. These are completely valid concerns, of course. But they are, as judicial priorities, a stark contrast to an investigation which seeks to determine actions, as they objectively occurred, and, more pressingly still, to determine whether or not there is guilt of serious wrongdoing.

Moreover, one of the recurring objections to Title IX trials is the low standard of proof necessary in establishing guilt. This is sometimes known as “preponderance of evidence,” which as Foundation for Individual Rights in Education explains, merely means “more probable than not probable.” The question becomes: Will a process with such a low evidentiary standard leave itself open to miscarriages of justice? Consider, also, the very real problem that elite schools have vested corporate interests that might make them likely to prioritize reputational self-preservation over truth-seeking.

Again, allegations of sexual misconduct are serious. Immensely serious. As is, of course, the principle of disempowering sexual predators, as championed by the #MeToo movement. But the gravity of the issue is precisely why it deserves an equally serious judicial process. Otherwise, the status of the allegations is reduced to gossip.

Madeleine Kearns — Madeleine Kearns is a William F. Buckley Fellow in Political Journalism at the National Review Institute. She is from Glasgow, Scotland, and is a trained singer.

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