Friday, September 15, 2017

What's happening on campus

Last week I know I raised some eyebrows when I suggested that Betsy DeVos and the Education Department might do some good by changing the Obama Administration's Title IX guidelines for university handling of sexual harassment charges on campus.  I based that comment largely on a remarkable book I had read a couple of months back, Unwanted Advances, by Laura Kipnis, a professor of media studies at Northwestern University.

To make the long story of how the book came to be written rather short, Kipnis became interested the case of a colleague (broadly defined) or hers, a philosophy professor named Peter Ludlow, who had lost his job an his livelihood thanks to accusations by an undergraduate whom Kipnis chooses to refer to pseudonymously as Eunice Cho, and a graduate student she calls Nola Hartley.  Cho, who was only a freshman at the time she got to know Ludlow, never accused him of having sex with her, although she claimed he had spooned against her while they spent one night in hsi apartment after they had been out having drinks together.  Hartley on the other had had a substantial and very well-documented relationship (this is the age of texts) with Ludlow, obviously based upon mutual affection, but had subsequently decided that he had used his power as a professor (even though he was not her professor at the time) to coerce her into the relationship.  What evidently struck Kipnis, a younger baby boomer who is now about 60, was that both cases were based on an idea she had learned to reject in her youth: the idea that women of 18 or older were fully capable of making, and living with, their own decisions about whom to have sex with.  Kipnis, a heterosexual herself, has continued to take advantage of that freedom all her life, she lets us know, and even admits to occasionally having had sex with students.  She wrote an article making this argument for the Chronicle of Higher Education, and was soon informed that she was the subject of a Title IX complaint brought by some women at Northwestern who accused her of creating an unfriendly environment.  Rather than back down, she got more deeply involved in the whole subject.  Meanwhile, university officials had found Ludlow guilty of sexual assault and ended his career.

Kipnis discusses the two accusations and how they were adjudicated at great length with the help of the files on the investigation that Ludlow gave her. I will confine myself to some observations of my own.  The most important thing to understand about the new campus doctrine and procedures, in my opinion, is that they are totally contrary to Anglo-American legal traditions as they have evolved at least since Magna Carta in 1215.  To begin with, there is no presumption of innocence for men accused of sexual harassment.  The women who bring accusations are routinely referred to not as accusers, but as survivors, implying that the question of whether a crime took place has already been resolved.  That is connected to a second principle of the new procedures: the survivors, not impartial third parties, decide whether a crime has been committed, based on their own feelings.  That is how Hartley, the grad student, could get a finding against Ludlow despite reams of texts showing that she had been not only a consensual but a very enthusiastic and lovestruck participant in their relationship.  She had subsequently decided that his superior power had coerced her (without the slightest indication that he had tried in any way to use it to force her into bed), and that was that.  That in turn leads us to the whole question of reasonable doubt, one of the standards of proof that the Obama Administration told colleges not to use in sexual assault cases.

When sexual assault activists are asked why colleges cannot simply leave criminal accusations to the criminal justice system, they routinely reply that survivors (that is, accusers) do not want to undergo the ordeal that would result, and that it is very difficult to get convictions there.  That is true, and there are two reasons for it. The first is that much of what constitutes "sexual assault" on campus today, such as simple unwanted touching with clothes on, isn't illegal at all.  But the second is that our criminal justice system requires proof beyond a reasonable doubt, which by definition is most unlikely to be available in what is referred to as a "he said, she said" situation.  When the accused tells one story and the accuser another, and there is no very damning evidence ot undermine the credibility of either one, there is very little basis for a jury to conclude beyond a reasonable doubt that one of them is telling the truth.  That in turn requires them to find the accused innocent.  That, for many sexual assault activists, is an unacceptable outcome.


The nature of the argument we are having is confirmed by an op-ed and a letter in the New York Times of Monday, September 18.  The op-ed by two grad students in sociology protests possible changes in the Department of Education's sexual assault policy. The article by Miriam Bleckman-Krut and Nicole Bedera begins as follows: "Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?"  Later, they add that "accused men's pain does not excuse rape, and men shouldn't be the ones defining it."  We have never had a criminal justice system, as it happens, in which either the accused or the accuser gets to decide the case.  The question of whether a crime has been committed has always been the province of third parties, chosen to be as impartial as possible--that is, judges and juries.  A letter to the editor from an attorney, Marian E. Lindberg, makes the same argument: "Whether one agrees with a preponderance-of-evidence standard turns largely on whether one thinks that women are more likely to lie about sexual abuse, or men more likely to lie about consent."  Our whole legal system--which, to be sure, has never functioned perfectly--is designed to substitute the impartial judgment of third parties of the facts of a particular case for blanket rules such as "believe the woman."

The Obama administration advised campuses not only to ignore presumption of evidence, but also to discard another standard, one of "clear and convincing" evidence that charges were true.  Instead they ordered them to make judgments based on the "preponderance of evidence," the standard used in a civil suit.  Even that standard, obviously, isn't much help when the evidence consists of opposing statements by an accuser and the accused--unless one decides that in these situations, women are inherently more credible than men.  The files Kipnis quotes show that the college bureaucrats charged with investigating these cases and the lawyers whom colleges often hire to investigate them routinely believe the accuser and disbelieve the accused.  And they do this, often, because of preconceived notions of how men and women do, and do not act.  Here an analogy is in order.  Kipnis does refer frequently to witch trials, but she never mentions what is to me a much more apt analogy: the Stalinist justice of the 1930s and 1940s and Mao's justice during the cultural revolution.  In those days, any class enemy was automatically guilty of any accusation against him and her, by virtue of who he or she was, regardless of the specifics of what they had done, or not done.  Indeed, justice in those regimes wasn't even supposed to be impartial: it was a front in the class struggle.  Now unfortunately, for at least three decades, university humanities have been teaching that the history of mankind is the history of the oppression, by white males, of everyone else.  Thus, when Cho (whose credibility on many points was shredded by cross-examination) said that she had spent the night with Hartley spooning, while he said that he had put a pillow between them, the administrator simply decided to believe Cho and find him guilty.

It occurred to me, as it didn't to Kipnis, that the practice of hiring attorneys to conduct investigations and report their findings, upon which the university then acts, has another huge problem, which is also related to how our judicial system really works. Attorneys are not trained to investigate situations impartially; they are trained to represent the interests of their clients, and they instinctively slant every fact in favor of their client.  In these cases they seem to wind up representing the accuser. I raised this point with a very experienced attorney of my acquaintance. He agreed with me, but he added that there were two kinds of attorneys, mediators and arbitrators, who are accustomed to listening to both sides of the question, and who would do a better job.  Mediators and arbitrators, however, use impartial procedures--the only reason anyone would hire them--and colleges and universities, threatened with the loss of federal funds under title IX, aren't interested, clearly, in impartial procedures that respect traditional principles of American justice.

Late in the book, Kipnis makes another critically important point about sexual assault on campus.  Many complaints, of course, involve situations in which both parties have consumed large amounts of alcohol.  Campus officials now argue routinely that no one can really consent to sex when under teh influence of alcohol (how much alcohol is required to deprive one of that power, I do not know), and therefore, sex with an inebriated woman is rape.  Leaving aside the question of whether this really makes any legal sense, what Kipnis argues--and she is clearly right--is that such rules criminalize what has become normal behavior on many campuses.  It is very clear that both young men and young women to go parties to get more or less drunk and "hook up."  They know they are going to drink, and that they may have sex, when they arrive.  But the adults who claim to supervise their lives have declared this behavior to be criminal--but only for the man, in a heterosexual encounter at least.  I do not think this is a healthy situation for anyone concerned.  For the record, if I had a daughter (which I never have), I would tell her in no uncertain terms never to get drunk with anyone she did not trust.

It is something of a miracle that Kipnis's book was ever written. The sex crimes bureaucracies on campus, she makes clear, also try to impose a high degree of secrecy on their proceedings, try to prevent the accused from keeping thorough records of them (for instance, by recording hearings or bringing attorneys with them), and say very little, normally, about how decisions were reached.  Publicity worked for Kipnis. Her acocunt of her own case suggests to me that the Northwestern hierarchy realized that it could do a lot of harm, and she was found innocent of creating a hostile environment rather quickly after she became nationally known.  Others, however, might not be so lucky.  There is not the slightest doubt that if I were still teaching on campus, this blog post could easily be cited by any member of the university as an actionable attempt to create an unfriendly environment.

I had planned this post for some time, but this morning I was delighted to find that I am not alone. The Boston Globe, whose coverage of campus sexual assault usually reflects the new orthodoxy, included a long story this very morning quoting a large number of liberals, many of them women, who, like me, believe that the Education Department does indeed have to reform its title IX guidelines.  I hope that readers here will be able to break through the firewall.  It's a good story, and it suggests that, thank heaven, reverence for our legal traditions is, even now, far from dead.  We still need a two-party system to remedy the excesses of both sides. This is one case where, even now, this might work.

                     . 

Friday, September 08, 2017

Struggling through the Crisis

We are now passing through the fourth great crisis of our national life, parallel to the American Revolution and the Constitutional period (1774-94), the Civil War (1860-8) and the Depression and SEcond World War (1929-45.)  This was what William Strauss and Neil Howe predicted 25 years ago, and they were right.  Like the other crises, this one is cutting us loose from our political moorings and making it very hard--like a battle--to keep a clear head.  Let me try to make our predicament, as I see it, just a little clearer.

Each of these crises, it seems to me, has had two different dimensions. To begin with, they all involve a very real struggle over the shape of America's future, and an attempt to replace a dying old order with a new one.  In the 1770s and 1780s this drama played out twice, first as the colonies overthrew British rule, and then as they replaced the Articles of Confederation with the Constitution.  In the 1860s we struggled over whether we would remain one nation, and whether it could continue to allow slavery.  The New Deal established new and critical roles for the federal government and changed the relations between labor and capital.  Now, we are fighting, and have been for some time, to see what, if anything, we shall preserve from the largely vanished New Deal leadership.

Yet each crisis had another even more important dimension as well: the question of whether a national government could either be created, or whether the existing one could continue to function at all.   Only barely did the Continental Congress and the state governments manage to keep the revolutionary armies in the field after 1775, and the constitutional convention convened in 1787 because the nation was sinking into anarchy.  Federal authority seemed to be disappearing when Lincoln took office, and he used emergency powers to preserve it.  A complete economic and political collapse seemed possible when FDR took office in 1933, and three years later the functioning of the federal government seemed to be threatened by a recalcitrant Supreme Court.  Because our forefathers overcome all those challenges, the United States still exists today.

Events this week suggest to me that we have been so preoccupied with the first aspect of our own crisis--the struggle over the future of America--that we have lost sight of the second--the possibility that our government might fail to function at all.  And for that reason, a relatively promising development--President Trump's deal with Charles Schumer and Nancy Pelosi over the debt ceiling--has been attacked by partisan Democrats and Republicans alike.

Now there is no question that this crisis has a third, nearly unprecedented dimension: the personality of Donald Trump, who is manifestly unfit for office.  The only parallel from history is Andrew Johnson, the President from 1865 until 1869, who immediately fell into a conflict with the Republican leadership in Congress, did what he could to stop Reconstruction from changing the South, and was nearly removed from office.  But Trump did not begin the battle for the future of America that is now waging, nor is he only one on his side waging it now.  The Republican Party, after accepting the New deal from the late 1940s through the early 1970s, declared war on it once again in the 1980s, and that war has only escalated ever since.  Corporate America and corporate money now dominate our politics and critically influence both of our political parties. Economic inequality has increased steadily for 40 years, the antitrust laws have become almost a dead letter, and most of our state governments are in the hands of politicians dedicated to the free market.  While New Deal ideas like single payer health care and free education are gaining ground in the left wing of the Democratic Party, their chances of coming true seem quite slim.  In my opinion we will be fortunate if we get out of the crisis with our economic arrangements more or less as they are right now, and real reform will have to wait perhaps another generation.

Meanwhile, however, the government has to keep functioning--and there are very real threats to it as I write.  One is a possible constitutional convention called at the behest of state legislatures, many of whom have already asked for it.  The Republicans control 32 state legislatures, and only 34 could call such a convention into existence. But the more immediate threat by far would be the Congress's failure to authorize an increase in the debt ceiling, as many of the extreme right wing Republicans in the House have long wanted to do.  That would affect not only our government, but the whole world economy.  And that was the possibility that President Trump and minority leaders Schumer and Pelosi joined together this week to stop, successfully tying an increase in the debt ceiling to the passage of relief for hurricane Harvey.  Many Republicans are furious, and Speaker Ryan felt outmaneuvered.  But some Democratic commentators, such as Michael Tomasky, are already worried that this might be the prelude to another deal with Trump, one that gave him some billions of dollars for his wall while reinstating some kind of DACA program to stop the deportation of "dreamers."

Meanwhile, on another front, a group of Democratic state attorneys general are trying to delegitimize the president's authority altogether. Their lawsuit to stop him from ending  the (entirely optional) DACA program that President Obama put in place argues, among other things, that the President should not be allowed to stop the program because he expressed hostility towrads Mexican immigrants during the campaign. While I feel very strongly that Dreamers need to be put on a path to citizenship immediately, I think it is entirely unreasonable to expect the courts to rule that our duly elected President is debarred from exercising lawful authority because he has expressed views that many, or even most Americans, find repugnant.  The political process is supposed to reflect the views of the American people. It has failed to do so on immigration, but that does not mean that we can count on the courts to stop the executive from functioning the way conservatives counted on them to stop the New Deal in its tracks during Roosevelt's first term.

If we want us to remain one nation--which I for one most certainly do--we must accept that many of the views of those who elected Donald Trump and the Republican Congress will now be put into effect.  The only cure for the ills of democracy, as Al Smith said, is more democracy.  In a few instances--such as the Education Department's plans to rewrite university guidelines for handling accusations of sexual assault--the Trump Administration might even do some good.  (I will be discussing this topic soon, based on Northwestern University professor Laura Kipnis's book, Unwelcome Advances.) Those will never be anything more than exceptional, but I am not going to criticize the Democratic congressional leadership for taking steps to allow the government to keep functioning--the kind of steps that their Republican counterparts were so opposed to while Barack Obama was President.


Friday, September 01, 2017

Our Fall of France moment?

For several years now I have corresponded and spoken with my young cousin once removed Ezra Silk, who works for a non-profit called the Climate Mobilization.  They believe that coping with climate change and putting the whole world on a new energy footing will require a mobilization on the scale of the Second World War, when an extraordinary percentage of our GDP was devoted to the war effort.  My last book, No End Save Victory, described how the country became committed to that course, under President Roosevelt, in 1940-1.  Such a mobilization, I have no doubt, would do enormous good for the United States (and the rest of the world) for reasons not directly related to global warming.  Because it would cost so much, it, like the Second World War, would force us to impose confiscatory marginal tax rates on high incomes.  The amount of GDP devoted to public goods would increase.  So, presumably, would employment.  All over the world, private gain would become less important while societies put huge resources into a truly common objective.  This would renew that precious resource, civic virtue.  It is the kind of mobilization Strauss and Howe predicted 20 years ago when they wrote The Fourth Turning--but nothing like it has happened yet.

To understand how it might, I return to my book and to the moment in the late spring of 1940 when the American war effort really began.  I found in my research that Franklin Roosevelt had anticipated a new world war at least since 1937, and that he would have been willing even late in that year to undertake joint naval action with the British to persuade the Japanese to halt their aggression in China.  He also anticipated American participation in a European war, he told the British Ambassador, should one break out as a result of the crisis over Czechoslovakia in 1938.  But when the war did break out in 1939, the most he could do was to persuade a reluctant Congress to allow France and Britain to buy arms from the United States for cash.  The vast majority of Americans did not yet regard the European war as a threat to the United States, and a significant minority opposed US involvement in an overseas war in any case. 

It took an earth-shattering catastrophe to change their minds.  In April 1940, Nazi Germany occupied Denmark and Norway, using surprise, speed and air power to counter British sea power, one of the cornerstones of American security. Then, on May 10, while the battle in Norway was still raging, the Germans attacked in Holland, Belgium, and France.  Within two weeks they had broken through the allied lines and reached the English channel, trapping the British Army.  France was clearly collapsing, and a great deal of informed opinion expected that Britain would be invaded if it did not agree to make peace.  Although Dunkirk saved most of the personnel of the British Army, all its heavy equipment had been lost, and the Germans briefly appeared invincible in the air.  I discovered in the archives that Roosevelt had asked an Army and a Navy planner to estimate what happen if the British Navy and the British Empire, assisted by the US, tried to carry on the war from the western hemisphere after Britain had been invaded.

The German blitzkrieg convinced the Congress and the American people that the United States itself was in peril.  Even if Britain did not fall--but especially if it did--the Germans could use their air power to leapfrog across the Atlantic from Norway to Iceland, thence to Greenland, and thence to Labrador and Newfoundland.  They might also send forces through the Pyrenees and Spain and Portugal (both ruled by Fascist dictators), into North Africa, and all the way to Dakar, in Senegal, only 1500 miles from Brazil.  The Japanese might simultaneously strike in the Far East.  The new situation called for a drastic response.  From June through September, Roosevelt called for 50,000 new aircraft, for a new naval bill that would nearly double the size of the Navy within five years, and for the first peacetime draft in US history.  The Congress passed them all. 

For some time now--and especially since the election of Donald Trump--I have been telling my cousin Ezra that only a "fall of France moment"--one or more environmental catastrophes that persuaded a critical mass of Americans that we needed drastic action to preserve our way of life--would allow us to begin the huge effort it wold take to stop global warming.  The question now is whether Hurricane Harvey might do the trick.

In many ways, a more inspiring weather event could hardly have been designed by Bill McKibben himself.  Like Hurricane Sandy, Harvey is in  many ways completely unprecedented.  It has broken many records for rainfall and may well create the largest floods of any storm in history.  And while Sandy struck the true blue northeast, Harvey has devastated the largest city in red America, inundating rich and poor neighborhoods alike.  Indeed, it seems certain to get a small-scale mobilization effort going on its own, simply to repair the damage and allow Houston to return to something approaching normal life.  That will take years, during which it will be impossible to forget what it did.  Meanwhile, a scientific consensus holds that global warming has indeed contributed to the unprecedented severity of the storm.

Unfortunately, as Jane Mayer showed in Dark Money, the Koch brothers and their allies have built up an impressive climate denial industry--parallel to the isolationist lobby in 1940-1--over the last two decades.  They are committed to further reliance on fossil fuels and to climate change denial, and I do not think this is going to make them give up.  Given that the Kochs and their allies dominate our Energy Department and the EPA under Trump, it seems very unlikely that this Administration will turn tail and propose action on climate change.  In 1940 we had the leader--Roosevelt--who knew how to take advantage of the situation we faced to make things happen. Today, we do not.

Thus I do not believe that even this will provide an adequate Fall of France moment, much less that within two years we will have embarked on an all-out effort against climate change.  This is a good opportunity, however, for the Democratic Party to unite behind an unambiguous call for action based on the idea that Harvey is only the last of a whole series of devastating weather events.  The natural enemies our civilization faces today are at least as relentless as the Germans and Japanese in 1940-1.  They will strike again.  I shoed in No End Save Victory that Roosevelt's administration had figured out what had to be done to defeat our enemies months before we entered the war. That is what we must do now.  The logic of events may well do the rest.

Friday, August 18, 2017

More Charlottesvilles?

The events last week in Charlottesville threaten to kick off a new chapter in American political history, one comparable in some respects to the student revolts of the late 1960s.  As usual, my perspective seems to be a bit different from most.  I shall try to share it.

I have no doubt, and have had none for at least the last ten years, that the United States is in the midst of a great political crisis.  Yet I am increasingly convinced that this crisis is not mainly a matter of left vs. right, but rather a crisis in our institutions and the relationship between our elites and the people which threatens either to plunge us into anarchy or even break up the United States.  The election of Donald Trump was a symptom of the crisis, in my opinion, because a demagogue without any background in public service, a man who had never been successful at anything except establishing and trading off of his own celebrity and his extraordinary neediness, and won the nomination of a major party despite the opposition of its entire leadership, and then squeaked into the White House without even a plurality of the popular vote.   The crisis was bipartisan, in a sense, because the Republican Party could not stop his nomination, while the Democrats could not come up with a candidate that could beat him.  By the time he took office Trump was firmly in alliance with the network of right wing donors led by the Koch brothers that I discussed at length two weeks ago.  That alliance, which also dominates Congress, is now working at dismantling more and more of the federal government.  Meanwhile, Trump's unstable behavior threatens war at almost any moment.

In the midst of this, two small but genuine grass roots movements have started something new.  A coalition of right wing groups, including Nazis, the KKK, and other white nationalists, decided to protest the removal of a statue of Robert E. Lee in Charlottesville, VA.  A larger number of people from the left decided to counterdemonstrate--and Antifa decided to show up to fight. There is really no doubt about that, and it is foolish for liberals to try to deny it.  Today both of my newspapers, the Boston Globe and the New York Times, have stories about Antifa quoting members who believe in violence against the right wing.

It took only one crazed right winger in his car to turn the Charlottesville protest into something bigger, by killing Heather Heyer.  But fatalities in such confrontations could happen in many other ways, and probably will. Many of the right wing marchers carried firearms; some of the Antifa people carried clubs.  There are many other controversies over monuments brewing around the country, and other pretexts for marches as well. Tomorrow 500 police and 100 state troopers will deploy around Boston Common to separate a right wing march for free speech from the larger number of leftists who plan to oppose it. By the time many of you read this tomorrow I suspect the Boston Common march will be dominating the news. (I won't be there.)

The concept of "space", promulgated by Jurgen Habermas, is central to postmodernist thinking, modern left wing thought, and contemporary liberal activists.  That is why they are so determined not to allow small numbers of far right activists to march unimpeded. But in my opinion, they are wrong.  Postmodern concepts of space and oppression are at odds with more traditional concepts of liberty and law.  The far right groups have the right to peaceful protest and other citizens do not have the right to impede them.  Should they become violent it is the responsibility of law enforcement to stop them, and I am confident that, in the vast majority of cases, they will.  In any case, these groups are still much too small to be any threat to our liberties, and they should be allowed gradually to return to the obscurity which they so richly deserve.

I do believe that Confederate monuments should come down.  Some months ago I devoted a post to Mayor Landrieu's speech on the occasion of the removal of the monuments in New Orleans, which I thought marked a milestone in American history.  A white southern politician not only endorsed, but embraced, the removal of the statues from a prominent outdoor location on the grounds that the Confederate leadership was on the wrong side of humanity and history.  I believe other white southern politicians, as well as many black ones, will follow his lead.  I have been shocked this week to discover that there were Confederate monuments in Baltimore and in Lexington, Kentucky, for the simple reason that neither Maryland nor Kentucky was ever part of the Confederacy.   The Baltimore statues of Robert E. Lee and Stonewall Jackson, it turns out, came from a bequest from a man named Ferguson and went up after his death in 1948.  Their presence was endorsed, disgracefully, by Mayor Thomas d'Alessandro of of Baltimore, who happens to have been the father of Nancy Pelosi.  Just today Pelosi has asked for the removal of Confederate statues (including one of Jefferson Davis) from the U.S.Capitol. Those statues were sent by the states, each of which was entitled to select two citizens to memorialize.  I don't know exactly when they went in, and I would be curious as to whether there was any effort to keep men who had taken up arms against the government of the United States out, but I don't think Congress should insist on their removal. They came from various states (Davis from Mississippi), and the states should remove them. And I think there is a chance that they will.

The United States needs above all to rediscover a functioning government that can command the allegiance of its people. A long round of battles between white supremacists and Antifa activists around the country will not get us any closer to that goal.  I believe the Democratic Party and its adherents should try to lead by example.