Law & the Courts

A Thing I Got Wrong

(Michael Ciaglo/Reuters)
The California Teachers Association and “credible accusations”

One of the things I have gotten wrong over the past few years, an error I have come to regret, is my criticism of the California teachers’ union and the state education authorities in the matter of teachers charged with sexual misconduct involving students. The unions insist on maintaining a procedure that makes it very difficult to terminate a teacher accused of a crime but not yet convicted of it. Teachers are, in fact, routinely kept on paid leave during criminal proceedings.

California’s public schools have seen a shocking amount of sexual abuse and misconduct by teachers. In one four-year period, some 600 teachers in the L.A. Unified School District alone were fired, resigned, or were facing sanctions because of “inappropriate conduct” with students. In response to one grotesque episode of abuse, the state took up the issue. As I wrote:

In 2012, the Assembly considered a bill making it easier to fire teachers who sexually abuse students. Consider for a second that word “easier” — should anything be easier than simply firing somebody who molests children? The bill was written in response to the case of a Los Angeles elementary-school teacher who was fired after being accused of sexually abusing his students, and who challenged his firing. Rather than act in accord with the horrifying details of the case, the school district paid the teacher $40,000 to drop his appeal. That’s small change compared with the $30 million settlement the district is paying to the teacher’s alleged victims as a result of the case, or, for that matter, compared with the $23 million bail requirement that is keeping teacher Mark Berndt behind bars as he awaits trial on 23 felony counts of gruesome sexual abuse. Against that background, making it easier to fire teachers facing credible accusations of sexual abuse seems like a pretty straightforward proposition.

I am, in retrospect, embarrassed to see those words — “credible accusations” — in my column. The California Teachers Association at the time stated that the proposed law “eliminated essential legal protections for teachers and that it believes the current system is an appropriate process.” The CTA had it right, and I had it wrong.

This old column came to mind while I was reading Sarah Viren’s horrifying essay in the New York Times about the smear campaign her family endured after cooked-up sexual-harassment allegations against her wife, a fellow academic. The essay should be read in its entirety, but the short version is this: When Viren was up for a plum academic posting at the University of Michigan, a man also in contention for the job — a man she knew — began filing anonymous sexual-harassment complaints against Viren’s wife, knowing that Viren would not be able to accept the job unless her wife could find a position at the university, too.

The accusations grew more lurid and outrageous, and — as in the UVA–Rolling Stone episode, Lena Dunham’s rape fabrications, and many of the accusations leveled against Brett Kavanaugh — many of the specifics were obviously false, but they still fell within the university’s elastic definition of “credible accusations.” And the university’s Title IX office could not close the investigation as long as fresh credible accusations were coming in, which they did until Viren spent thousands of dollars hiring lawyers and subpoenaing email records to get to the truth. (Note to fraud artists: When setting up a phony email account, do not use your own telephone number for verification.) In the end, Michigan declined to offer Viren’s wife a position, and Viren was forced to abandon the offer they made to her. Viren does not make this accusation in her New York Times piece, but it is all too easy to imagine risk-averse (and cowardly) university administrators taking a “where there’s smoke, there’s fire” attitude toward a candidate.

In Slate, a woman tells her story of being “very brutally raped” (and nearly strangled to death) and taking her case straight to . . . the man’s boss. Not the police. The many variations on this story we have seen over the years do not require cataloguing here.

Mark Berndt, the California teacher, was convicted and sentenced to 25 years in prison. (That’s a pretty good deal for him — he could have been sentenced to 345 years.) He is guilty. Sarah Viren’s wife is innocent. So is Brett Kavanaugh. So were those Duke lacrosse players and those Virginia fraternity members.

There are a few things at work here.

One is that the generations of people raised with the Internet — and especially those of the generation shaped by the norms of social media — have taken for granted that they may lob wild and false accusations against whomever they choose, for whatever reason they wish, without consequence, protected by anonymity. The same culture has produced an ethics tailor-made for precisely the kind of abuse we have seen: Lies are acceptable when they are used to counteract “privilege,” “patriarchy,” “white supremacy,” or any of the other convenient hobgoblins of the time. No doubt the man who made up those accusations in the Viren affair believed himself in the right and utterly entitled to do what he did. (He was, Viren reports, a gay man living unhappily in a conservative town.) That ethics naturally is accompanied by a rhetoric, which is used to disguise what actually is going on in any given interaction: “Credible accusation” means, in many cases, “accusation against somebody I do not like and wish to see hurt”; “hold accountable” means “inflict personal harm on a rival”; “privilege” means “something that makes it harder to hurt this person than I would like for it to be”; “justice” means “slander.”

Another is that the very real institutional failings of police departments and prosecutors interact with a conspiratorial account of culture and institutions (the “woke” worldview is, at heart, a conspiracy theory) in a way that makes some people much more eager to embrace social-media slander as an avenue of “justice” than such old-fashioned methods as filing a police complaint after being “very brutally raped.” This is in turn exacerbated by the fact that the acts for which many people go seeking “justice” are not crimes. As Megan McArdle has very persuasively argued, one of the problems with the libertine-libertarian criterion of “consent” in sexual relations is that it leaves people without a moral language to describe other aspects of sexual encounters that leave them unhappy or feeling hard done-by. That is how sexual encounters that do not have any of the hallmarks of what traditionally has been meant by the word “rape” end up being recast as rape. This is not to say that there are not other forms of sexual misconduct other than forcible rape — precisely the opposite, in fact. But it is difficult to balance that against the ethic of “Anything goes, as long as everybody signs on the dotted line.” And so we lurch from baroque new rules of etiquette to wild promiscuity, from the Marquess of Queensbury to the Marquis de Sade.

Yet another factor, which I describe at some length in The Smallest Minority, is the emergence of employment (and, to a lesser extent, access to educational institutions and public forums) as an instrument of political and social discipline. Justine Sacco (“Has Justine landed?”) is the Patient Zero in that particular epidemic, which now reaches everywhere, from academia to Silicon Valley to journalism to Wall Street to publishing: Woody Allen has seen the publication of his memoirs canceled by Hachette — which is, it bears noting, the publisher of Adolf Hitler. (A Hachette subsidiary brought out a new edition of Mein Kampf in 2017.) My own experience in that arena was a matter of public interest for a few days a couple of years back.

What to do? One thing to do is to acknowledge that California Teachers Association had it right: A criminal conviction is the gold standard when it comes to criminal wrongdoing. Deans of students, human-resources departments, and Caitlyn on Twitter have no business adjudicating rape cases, or any other criminal cases, because they have no competency in the matter. We might further note that while the corruption and criminality of organized labor in the United States is undeniable, it is not the case that labor unions have to be that way: Compare our United Autoworkers to Germany’s IG Metall. An organized countervailing force to balance the power employers hold over the lives of employees presents a host of obvious problems and potential dangers, but we should not ignore the soundness of the underlying principle even as we proceed clear-eyed about the practical realities and our historical experiences with labor unions.

We should also apply a very steep discount to accusations that are made anonymously and to those (again, the Kavanaugh affair, but also the Clarence Thomas affair and others) that surface decades after the facts in question as a purely punitive measure directed against some person who has become prominent. We might also make it easier to recover legal expenses in defamation cases and encourage people to pursue them as a matter of the public interest. These would represent reforms that are admittedly modest, but they may be the best we can do while maintaining an open society with free speech.

There is an extensive body of scholarship on the uses and potential of gossip as an instrument of social discipline. The general idea is that people value their reputations and their standings in their communities, and that gossip can be used as a sanction for transgressions that either do not rise to the level of criminal or civil action or are more effectively addressed through informal means. Many libertarian-leaning critics, myself included, have seen and still see great value in that as an alternative to litigating (or criminalizing) every source of social friction in a free, open, dynamic, and diverse society such as ours. But we should recognize that informal sanctions are at least as prone to abuse as formal ones, and give not one inch to the utopian temptation.

And, of course, remind ourselves of the things we have been wrong about when we start to feel like we have it all figured out.

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