The Megyn Kelly Show - Biden Brings Back ＂Believe All Women＂ - KC Johnson on Key Title IX Cases on College Campuses

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00:00:31.000 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:42.460 Hey everybody, it's Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:45.660 Today we've got Casey Johnson, who you need to know.

00:00:49.700 He's brilliant. He's an expert in a really important topic.

00:00:53.080 Among other things, he's been very closely following what's happening to young men on college campuses

00:00:59.260 who are accused of sexual assault or harassment and the kangaroo courts that they are subjected to

00:01:07.060 in trying to defend themselves.

00:01:09.120 I'm really focused on this and I have been for many years,

00:01:12.260 in part because I do think it's so important to have a fair process, both for the woman and the man.

00:01:19.040 And the less fair it is for the man who gets accused,

00:01:22.040 the fewer women who are going to be believed because people no longer have faith in the process.

00:01:27.140 So I think it's equally important for all parties involved that we have a fair process,

00:01:32.040 that due process is afforded the accused in these proceedings, and it hasn't been.

00:01:37.520 The stories we're going to go through today are going to make your hair curl up.

00:01:41.680 I mean, it's upsetting, it's infuriating, it makes you want to do something about it,

00:01:46.940 but it doesn't get talked about enough.

00:01:48.600 So I've been covering this for years.

00:01:50.960 Casey's helped me.

00:01:52.260 He's actually an American history professor at Brooklyn College

00:01:54.940 and City University of New York, the Graduate Center.

00:01:57.840 He went to Harvard, then University of Chicago, then back to Harvard.

00:02:01.860 So this guy is very smart and a college professor.

00:02:05.200 So not only has he been studying what's happening on college campuses,

00:02:07.800 but he's been on college campuses for most of his adult life.

00:02:10.800 We'll get into all the reasons why I think you should listen to him.

00:02:13.380 Here's what's happening.

00:02:14.160 The procedures afforded to accused young men under Barack Obama were non-existent.

00:02:21.340 They basically, you got accused, you got convicted.

00:02:24.140 And it was terrifying and really unjust.

00:02:28.420 And then Trump came in and with DeVos, they reversed it.

00:02:31.220 And they got a lot of the procedures restored.

00:02:33.540 And now Joe Biden has said that, and I quote,

00:02:38.000 any backstepping when it comes to Title IX,

00:02:40.440 this is a statute that's at issue, we'll get into it, is unacceptable.

00:02:43.640 Anything.

00:02:44.860 And that they are going to restore the procedures that were in place under the Obama-Biden administration.

00:02:51.000 So here we go again.

00:02:52.500 One step forward, two steps backward.

00:02:54.780 And if you know anybody who's headed to college in the next eight years,

00:02:58.900 or just care about justice and the procedure in this country,

00:03:04.320 you have got to hear this interview.

00:03:06.080 All right?

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00:04:34.140 Casey Johnson, thank you so much for being here.

00:04:38.880 Thank you for having me.

00:04:39.880 I've really been looking forward to this conversation.

00:04:41.980 I told my team from like the day we launched this show,

00:04:44.600 you know who I want in this program?

00:04:46.000 Casey Johnson.

00:04:47.440 You've done amazing work, amazing work,

00:04:50.260 staying on top of what has happened when it comes to due process and our universities.

00:04:54.880 This has been like, this is stuck in my craw for years now because even though many people

00:05:01.460 associate me in some way with the Me Too movement, and I acknowledge I had a role that

00:05:06.480 I make no apologies for in that movement, I'm also a lawyer and I believe in due process.

00:05:12.520 I believe it's essential to the rights of those who are accused and those doing the accusing.

00:05:18.560 The system doesn't work unless it's fair for both parties and it hasn't been.

00:05:23.420 So Betsy DeVos gets in there and tries to make it fair and Joe Biden's trying to undo what she

00:05:29.600 did.

00:05:29.880 So we're going to get into all of that.

00:05:31.020 We're going to go through some cases.

00:05:32.300 Let's start at the beginning, just so the audience understands, what is Title IX?

00:05:36.220 Title IX is a federal statute which was passed in 1972 at sort of an early period of feminism.

00:05:45.440 It goes through Congress at roughly the same time Congress is considering the ERA.

00:05:49.380 And it requires all schools that receive federal funds, which is basically every school in the

00:05:56.020 country because federal funds under the law are defined as if you get student aid assistance or

00:06:00.800 Pell grants or anything like that, it counts.

00:06:02.480 So basically every college in the country is required not to discriminate in their educational

00:06:07.480 program on the basis of sex.

00:06:10.120 A very short statute.

00:06:10.960 The debate was relatively perfunctory in Congress.

00:06:15.680 It was overwhelmingly approved on a bipartisan basis.

00:06:19.380 It was signed by President Nixon.

00:06:21.720 And for its first 25 years, and I think to a certain extent even today, it was best known

00:06:27.800 for what is to me one of the great public policy successes in higher education of the last

00:06:32.820 half century, the growth of female athletics.

00:06:34.800 And so, you know, it was a system that required schools to give, require colleges to give, you

00:06:41.180 know, female athletes the same rights that they gave to male athletes.

00:06:44.400 If you had lots of male teams, you had to have lots of female teams, but it was seen as a

00:06:48.360 kind of balancing agent.

00:06:50.120 It was, you know, in 1972, there was no suggestion that it was going to be applying to campus disciplinary

00:06:56.000 processes at all.

00:06:58.440 I remember there was a line in that movie, The American President, where somebody was talking

00:07:02.080 to Michael Douglas's fake president character and saying something like, you know, the president

00:07:07.440 said, you know, I think Title IX has been in effect for a long time now, Bob.

00:07:10.780 And the other guy goes, I know, sir, but they're really trying to enforce it now.

00:07:15.600 Lamenting, you know, the push for female athletics at colleges, which, of course, we all want.

00:07:19.860 I mean, now, in retrospect, it's easy to see that was important.

00:07:22.620 We needed it.

00:07:23.120 It's good.

00:07:24.000 And then once it got expanded to, OK, it also includes the right not to be sexually harassed

00:07:29.060 and assaulted on campus.

00:07:30.740 OK, good, because no one wants that either.

00:07:34.340 And for too long, like when I went to college back in the dark ages, 1988 to 1992 at Syracuse,

00:07:41.160 there were a lot of sexual assaults and rapes and date rapes, which we were just getting

00:07:45.860 familiar with, that in which the accused, maybe the pendulum was too far in his favor,

00:07:54.240 right?

00:07:54.400 Like the women had a very uphill battle trying to prove these claims.

00:07:58.560 It was almost an assumption that they were nuts and the standard was high.

00:08:03.760 And most of them were just too afraid to do it at that time because they knew that the

00:08:06.040 deck was stacked against them.

00:08:07.120 So, OK, all in good faith to try to correct this.

00:08:10.600 I'll I'll I'll give everybody that they wanted to correct the imbalance.

00:08:13.680 But then, like most things, we overcorrected.

00:08:17.480 So the Obama administration comes in there and what they did, I I don't even know if I

00:08:21.760 can say this is this is in good faith because this should have been obvious from the start

00:08:24.740 that this was fraught.

00:08:26.140 In April 2011, they issue what's called a dear colleague letter, and it was issued by

00:08:31.460 Joe Biden.

00:08:31.920 So just in case people have any doubts about where his his intent and intention is here

00:08:36.740 and tell tell the audience what that did.

00:08:39.720 The April 11th, dear colleague or dear dear friend letter that went out to the colleges.

00:08:43.920 Right.

00:08:44.420 So this is a document which is which is issued through the Office for Civil Rights.

00:08:48.380 So that's the the office in the Department of Education that enforces Title IX.

00:08:54.940 And it built off the premise, which you just talked about, that colleges have both a legal

00:08:59.360 and a moral obligation to address sexual assault because it constitutes discrimination in education

00:09:05.080 of a female student who has been sexually assaulted and then has to go to class with her with

00:09:09.260 her rapist.

00:09:10.080 That's going to deny her an opportunity to to receive an education.

00:09:14.000 So no one really denies that that's that's necessary for schools to do.

00:09:19.320 What the dear colleague letter did, however, was as guidance.

00:09:23.100 And so this this was this was a document that was just written by the Education Department.

00:09:26.780 It didn't go out to the public for comment.

00:09:29.060 It didn't go to universities for comment.

00:09:30.660 It didn't go to Congress to comment to to require colleges essentially to to place a

00:09:37.760 thumb on the scales in favor of students who filed complaints.

00:09:42.740 And along with guidance that was issued in 2014, a longer document called the question

00:09:47.520 and answer document, the dear colleague letter required of, again, basically all schools

00:09:52.240 to adjudicate sexual assault through a series of procedures that made it much more likely

00:09:58.260 that students would be found guilty.

00:10:01.000 And so schools were required to use a preponderance of the evidence standard.

00:10:05.360 Many schools had used a higher standard as called a clear and convincing, which is basically

00:10:09.480 75 percent or so certain preponderance is 50 percent and and a feather.

00:10:14.400 It required schools to allow accusers to have the right to appeal a not guilty finding.

00:10:21.480 So, you know, it's which in the criminal process would be considered double jeopardy.

00:10:25.400 So you have a system where a student can can be found not guilty originally, but then is

00:10:30.180 is subsequently found guilty a second time.

00:10:33.420 It required schools to train their adjudicators.

00:10:36.880 And this was one of the most troubling aspects of the of the of the provision.

00:10:42.400 You would think, what could possibly be a problem with that?

00:10:45.140 Well, the the training that was used was called trauma informed training, which which gave to

00:10:51.160 the adjudicators a sense that basically any behavior would be consistent with guilt.

00:10:56.160 And it was training that was not shared with the accused student.

00:10:59.520 So, again, in the criminal justice process, this would be the equivalent of, say, if the prosecutor

00:11:03.260 was able to give the jury six hours of training that made them more likely to return a guilty

00:11:08.220 finding and never even had to share that information with with the defense, it would be an obviously

00:11:13.360 unfair process.

00:11:15.240 And then finally, and maybe most importantly, the guidance strongly discouraged and in effect

00:11:20.720 prohibited under the term, the procedures that most schools use the right of an accused

00:11:25.060 student to cross examine his accuser.

00:11:27.600 And in these cases where, you know, not all the time, but but but most of the time, there

00:11:32.720 are no other witnesses apart from the two students who were involved in in in the incident.

00:11:38.500 The ability to ask questions of, you know, of each side and probe their weaknesses is critical.

00:11:43.880 I mean, the Supreme Court has described cross examination as he was as the best tool to to

00:11:48.720 pursue the truth.

00:11:49.600 And the goal in the Obama policy was to ensure that didn't happen and that the premise of

00:11:54.940 the policy, it was not well explained when it was issued.

00:11:57.880 Um, the the only factual premise was it was an assertion that, uh, that that hundreds of

00:12:04.060 thousands of female students every year are sexually assaulted, which again, on campus,

00:12:09.580 which is true, would would suggest that the typical campus is a very, very dangerous place.

00:12:14.100 Um, it's not true.

00:12:15.160 It's not true.

00:12:16.420 Um, and then but the but the subsequent, uh, uh, rationalizations for the policy were really

00:12:22.280 quite interesting.

00:12:23.100 And the core premise, I think, of the Obama approach was that was to create a system in

00:12:29.320 which victims of sexual assault would feel comfortable reporting, uh, their offense, which

00:12:35.260 of course, again, is something we all want.

00:12:36.920 Um, but the best way to do that would be to create a system in which anyone who files a

00:12:41.920 sexual assault complaint would know going in that they were never going to be asked tough

00:12:46.260 questions about their allegation.

00:12:48.180 And that's sort of a system that turns, turns everything on its head.

00:12:50.880 It presumes the, the guilt of the, of the accused.

00:12:54.800 Right.

00:12:55.200 I mean, I, I always go back to this and this is how I first got to know you, but you take

00:12:59.200 a look at what happened in that Duke lacrosse case.

00:13:01.280 What if, what if no tough questions had been asked of the accuser, Crystal Mangum in that

00:13:07.160 case, then we'd have three boys still in prison for a crime they didn't commit.

00:13:12.400 And that was a case in which, uh, these three young men in case we have, you know, very

00:13:16.760 young audience members, which I know we do, um, back in 2005 or so, uh, who were accused

00:13:22.120 of raping, gang raping, uh, young woman who was an exotic dancer who came to their lacrosse

00:13:28.400 party one day and it was all made up that they got charged.

00:13:32.620 Their whole lives were at risk and she made the whole thing up with the help of a corrupt

00:13:39.080 DA who was running for reelection in a city that was half black, half white.

00:13:45.740 She was the alleged victim was black.

00:13:47.580 The, the accused were white.

00:13:49.540 There was class, there was race, there was privilege at issue.

00:13:52.700 And he saw an opportunity to run in a hotbed case and get himself another term as DA and

00:13:58.600 increase his pension.

00:13:59.780 That guy's since been disbarred and spent a day in jail for his behavior.

00:14:04.200 Uh, and she wound up going to jail much later for attempted murder, I think of her boyfriend

00:14:08.760 way after the fact.

00:14:10.260 Okay.

00:14:10.460 So anyway, my point is Casey wrote a book about this.

00:14:13.020 He was thanked publicly by the three defendants in that case for being open-minded to their

00:14:17.620 innocence, not, not, you know, open-minded to anything, right?

00:14:20.500 But most of the people reporting on that case were not open-minded to the possibility of

00:14:24.320 innocence and you were to your credit.

00:14:26.580 And, um, so that's your background.

00:14:28.900 So you, you're, you're taking a hard look at this evolution, um, in the law and, and on

00:14:33.920 college campuses and how we're going another way, how we're, we're back now, forget presumption

00:14:40.360 of innocence for the accused.

00:14:42.280 It's, it's presumption of guilt.

00:14:44.580 Right.

00:14:45.100 And this is, you know, the lacrosse case was really the reason that I started to focus

00:14:48.840 on this issue in the aftermath of the dear colleague letter, because I think one of the

00:14:52.440 assumptions behind the dear colleague letter, um, and this is, you know, if you listen to,

00:14:57.740 to Biden's speeches on this at the time, Biden, as you, as you've commented, was the person

00:15:01.800 who introduced the dear colleague letter.

00:15:03.120 And, and, and since Biden seems to operate under the, the premise, and I think the Obama

00:15:08.140 people did as a whole, that campuses were back in, in the dark ages, you know, in the

00:15:13.120 seventies and eighties, where everyone just wanted to sweep sexual assault under the rug.

00:15:17.220 And the Duke lacrosse case was, you know, was, was a case where you, you could not have come

00:15:22.540 up with more obviously innocent students.

00:15:25.240 You know, the, the, there, there was one of the guys who was accused, um, was happy to,

00:15:30.320 you know, in a great stroke of luck for him happened to be on video at an ATM machine,

00:15:36.540 like two miles away from the party at the time he was alleged rape.

00:15:40.040 And the joke was that even in Durham, the laws of physics do apply and you can't be in

00:15:44.620 two places at, uh, at once.

00:15:46.680 Um, and, and yet on, on the Duke campus, the president of Duke, uh, outspoken members of

00:15:52.660 the, uh, of the faculty, you know, issued statements, presuming these guys, uh, uh, guilt.

00:15:57.440 So it was a reminder of the way I think in which the different population of the, uh,

00:16:02.960 of the faculty, I mean, it's no secret that, um, that most, uh, college campuses, especially

00:16:07.540 elite college campuses lean very far to the left on, on issues of race and class and gender,

00:16:13.760 um, created a, a, a campus culture in which, uh, students were, were presumed guilty.

00:16:19.260 And so when this Obama guidance came out, um, universities, you know, were, were more than

00:16:25.240 happy to implement it oftentimes even more zealously, uh, than the Obama people were demanding as

00:16:31.920 a result of the guidance.

00:16:33.040 You've got a situation where the federal government was sort of pushing at an open door and, you

00:16:38.600 know, empowering, uh, you know, true believers on campus who really saw their mission as rectifying

00:16:46.380 injustices of the past by punishing innocent people in, in the present.

00:16:51.980 And this is a, that's the kind of system that's never going to work.

00:16:54.440 Oh, it's, uh, it has such parallels with what we're seeing right now with race and the messaging

00:17:00.200 around critical race theory.

00:17:01.720 Speaking of, you know, punishing the present for the past people who had, you know, nothing

00:17:06.720 to do with slavery or Jim Crow or being treated like they were, they were the ones behind it.

00:17:11.840 So yeah, to your point, politically, it was appealing to the professors and the administrators

00:17:16.500 who are being given this dear colleague letter.

00:17:19.180 Can I just ask you before we get to it though, into more, can we talk for a minute about why

00:17:23.940 there, there really aren't hundreds of thousands of sexual assaults on these campuses every

00:17:28.480 year and these numbers.

00:17:29.700 And believe me, believe me, I'm very open-minded to women claiming sexual assault and harassment.

00:17:35.460 I am, I've lived it.

00:17:36.600 I get it, but we have to stick to reality and understand that some people manipulate these

00:17:42.080 numbers because they themselves have an agenda.

00:17:44.160 And that's what's happened with these numbers here.

00:17:46.040 The numbers are not as large as, as claimed.

00:17:48.100 And why is that?

00:17:49.760 Right.

00:17:49.920 So as you say, there's absolutely no question that, you know, if you, and there's all the

00:17:54.700 data here is consistent, that the people who are, who experience sexual assault the most

00:17:59.800 in American society are women age 18 to 24, alcohol is frequently involved.

00:18:04.820 And so, you know, campuses, it's not as if campuses are immune from, from this approach.

00:18:10.160 The problems here are sort of twofold with these, with these surveys.

00:18:14.320 The first is that they tend to define sexual assault.

00:18:18.900 They never ask a student, you know, were you sexually assaulted or were you raped?

00:18:22.220 They instead describes behavior and they describe it in very, very broad ways.

00:18:27.000 Often times using phrases like unwanted sex, which may mean, you know, sex that you just

00:18:33.760 didn't really want, but you never really communicated that.

00:18:36.840 And so there's, there's a problem with, with, with definition.

00:18:40.900 The second is that the, these surveys tend to focus, uh, you know, the most, uh, the

00:18:47.860 largest of these, which was done by the, by the Association of American Universities

00:18:51.100 called the AAU tend to focus on residential, uh, uh, colleges, but the, the, the majority

00:18:57.560 of American students do not attend, you know, Harvard or Yale or Lafayette or Lehigh, you

00:19:03.300 know, four year residential liberal arts colleges or, you know, Ivy League tier one

00:19:07.860 universities, um, instead that, you know, they attend schools like where I now teach

00:19:11.480 at, you know, Brooklyn college, which is a non-residential school, or they might be part

00:19:15.540 time or they, and, and, and for these students, you know, they're, they're not experiencing

00:19:19.720 sexual assault any differently than the general population, uh, uh, would.

00:19:24.300 So it was, it was, you know, these, these were numbers that were focused on a particular

00:19:28.220 kind of campus and then it was generalized out to assume that it would include, uh, include

00:19:33.520 everyone.

00:19:34.000 And so the result, you know, the, the, the figures that the Obama administration used

00:19:37.340 was a claim that one in five female undergraduates would be sexually assaulted at their time

00:19:42.420 in college.

00:19:43.220 That would translate there.

00:19:44.600 There were roughly 10 million female undergraduates that, so that would rough, you know, translate

00:19:48.840 to roughly 2 million, uh, uh, sexual assaults every five years on campus.

00:19:54.040 And if that's true, that would suggest that a typical college campus is by far the most dangerous

00:20:00.060 place, you know, in the United States.

00:20:02.520 And yet these advocates never called for increased police presence or increased enforcement or

00:20:07.080 anything like this.

00:20:07.860 And so even, you know, even the, the, the, the, the truest of true believers in this area

00:20:12.880 by the policies that they recommended, it was clear.

00:20:15.660 They didn't really believe the figures either.

00:20:18.120 Well, and it's not just unwanted sex to go back to that.

00:20:21.280 It's unwanted touching.

00:20:23.180 So, I mean, that's really ambiguous, right?

00:20:24.920 If you're going to lump in unwanted touching with every instance of sexual assault, you're

00:20:29.620 going to run your numbers right up.

00:20:30.820 I mean, some of us remember that as college, a guy takes a shot, you know, he's, he, he's

00:20:35.800 making out with you.

00:20:36.560 You don't want to make out with him.

00:20:37.480 You push him off.

00:20:38.100 That's the end of that.

00:20:38.860 He gets the hint.

00:20:39.500 You walk away, no harm done under today's standards.

00:20:42.560 You could, you could list that as a yes, as a, as a, as a, a sexual harassment, potentially

00:20:47.660 sexual assault, because it's an unwanted touching.

00:20:50.520 Correct.

00:20:50.880 In these surveys that, you know, an, an instance like this would be, would be sexual assault.

00:20:56.260 And so, yeah, consider say at a party, um, people are dancing, um, one person brushes

00:21:01.320 up against, uh, another, it may not even have been an intentional brush up, but the, you

00:21:06.260 know, the other person considered that to be unwanted.

00:21:08.660 You know, she could answer honestly in these surveys, that was sexual assault, but the average

00:21:13.040 person, when they hear one in five women have been sexually assaulted on campus, you know,

00:21:17.600 they're thinking quite reasonably that, you know, what we're talking about here is the

00:21:21.980 commonly understood definition culturally and legally of sexual assault.

00:21:26.300 And of course, that's not, that's not what we're talking about at all.

00:21:28.360 And it also doesn't make any allowance for another very real dynamic on college campuses

00:21:34.560 in particular, which is the Sunday morning regrets.

00:21:37.260 You know, they, you have it about alcohol.

00:21:39.980 Um, and a lot of women have it about hookups about guys.

00:21:43.320 They nine times out of 10, alcohol was involved.

00:21:46.080 They had too much.

00:21:47.180 They made a decision when it comes to fooling around with a guy that they'd like to have

00:21:50.460 back.

00:21:51.360 And too many times we've seen that translated into, it was non-consensual at the, in the

00:21:58.600 moment it happened because women feel shame about it the next day.

00:22:01.940 And women do need to be very careful about making sure, you know, of the difference between

00:22:08.880 non-consent in the moment and just deep regret after the fact about what was at the time a

00:22:15.160 consensual encounter.

00:22:16.600 Correct.

00:22:17.400 And there's a, there's a retroactive withdrawal of consent in some of these, these cases.

00:22:22.800 And, and there is no typical campus sexual assault case, but in, you know, in, in the

00:22:27.920 litigation in this area on both sides, you know, the, these, these are cases that often

00:22:31.780 involve both parties have been drinking.

00:22:33.520 They often have, you know, only vague recollections of what they occurred in, in most of these

00:22:39.220 cases, these are things that the parties probably, both students probably would not have done

00:22:44.080 if they were fully sober, but the nature of campus, you know, social and cultural life

00:22:49.340 is that students often drink and sometimes they drink too much and, you know, they, they

00:22:52.940 do things that they would, would not do if, if they were, if they were sober, but that's

00:22:56.860 a learning lesson that, you know, that's not in and of itself sexual assault.

00:23:00.380 Now, of course you can drink to excess where, you know, you're, you're, you're passed out

00:23:05.140 or you no longer have the ability to, to say no.

00:23:07.580 I mean, but that, that's a completely different standard.

00:23:10.140 Well, let's pause there.

00:23:10.940 Let's pause on that because what is, you can rape somebody who was conscious, um, while

00:23:21.380 the rape was happening, if she is incapacitated.

00:23:25.980 And, um, that's what we saw in that case.

00:23:28.040 God, what was the case, Casey, where the woman was taken out behind the dumpster on the college

00:23:32.060 campus?

00:23:32.760 Yes.

00:23:33.180 The Stanford case, Stanford.

00:23:34.900 Yeah.

00:23:35.000 The Stanford case.

00:23:35.760 Okay.

00:23:36.160 So that, that was the issue there that she was alive, but she, that woman is actually

00:23:41.360 basically unconscious and she was incapacitated.

00:23:44.760 You can drink so much that you're basically incapacitated, but what about a woman who is

00:23:49.120 just, just drunk, drunk versus incapacitated?

00:23:52.700 How do they draw that line?

00:23:54.780 Right.

00:23:54.980 And this is, this is the, the, one of the critical problems in the campus, uh, process in, in

00:24:02.080 a criminal justice process, that line can be relatively easily drawn, you know, during

00:24:07.020 the investigation, but during trial through cross-examination, you can sit, ask, ask the

00:24:10.980 complainant, you know, how many, how many, what did you have to drink?

00:24:14.340 When did you have to drink?

00:24:15.100 You can establish a kind of base alcohol level at, at, on, on campus.

00:24:19.640 However, what is frequently done in these cases is simply to blur the distinction between,

00:24:24.880 uh, drunk and incapacitated, or even more troublingly to allow, um, the, the accusing

00:24:33.580 student, the opportunity to, to simply say that she was incapacitated without any evidence

00:24:39.660 thereof.

00:24:40.180 There, there's this, this famous case that occurred at George Washington University in

00:24:43.520 DC, where the student was found guilty on the basis of, of, of incapacitation, even

00:24:48.600 though the, the, the, that the accuser was incapacitated, even though the accuser's own

00:24:52.200 story was that, uh, she, she had sex, she didn't, she didn't like it.

00:24:57.140 And so she said that she raced out the room and then, and went, ran down eight flights of

00:25:01.620 stairs.

00:25:02.060 Now, someone who can run down eight flights of stairs is not incapacitated.

00:25:05.940 Um, and yet schools, uh, schools, you know, frequently blur these, uh, blur these lines

00:25:11.400 to, to the extent almost where, you know, if, if, if the accusing student has had any alcohol

00:25:16.380 at all, that can be, uh, uh, uh, you know, a definition of incapacitation.

00:25:21.740 So this, this is a real problem in the campus.

00:25:24.280 Yeah.

00:25:24.480 It's, it's, it's, it's insane.

00:25:25.420 It's so unfair.

00:25:26.500 I mean, that this is, this is why we have young men and women now.

00:25:30.380 I mean, the men in particular asking women to sign a consent forms before they fool around

00:25:36.200 at all, because they're terrified.

00:25:38.460 I'm not drunk.

00:25:39.520 I, I have full capacity.

00:25:41.280 I can hear, I can see, I can touch my, my index finger to the tip of my nose.

00:25:45.760 You know, like they're basically doing field sobriety tests before they get in bed together.

00:25:51.040 Right.

00:25:52.280 Um, I laugh, but I'm a hundred percent going to train my boys to do all of that.

00:25:56.400 Back to Casey in just one second.

00:25:57.880 But first let's talk about masks.

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00:26:11.000 You could face criminal penalties if you don't wear them.

00:26:14.000 That's insane, but it's happening.

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00:27:51.640 Things were going nuts.

00:27:53.580 Hundreds, hundreds of lawsuits started to get filed against colleges and universities by

00:27:59.460 typically young men who had been subjected to these kangaroo courts claiming that their

00:28:04.900 due process rights were violated.

00:28:06.840 And they started winning.

00:28:08.260 They started winning.

00:28:09.140 These were blatant violations of the Constitution, of these kids' rights.

00:28:13.580 And as that was happening, Obama's term was coming to an end and Trump won.

00:28:20.120 And people ask me all the time, like, was Trump all bad?

00:28:23.300 Did Trump do good things?

00:28:24.960 And I think this is one of the best things he did.

00:28:26.700 I think any fair-minded person could see that this was an improvement of our system where

00:28:33.180 he and Betsy DeVos launched an overhaul of this system.

00:28:37.120 And they did it in an orderly, procedurally correct, sound way, trying to restore a fair

00:28:46.400 process for all on college campuses.

00:28:49.740 They took input from victims' rights groups, from defense attorneys.

00:28:53.580 They didn't, you know, they were conscious not to overcorrect back the other way.

00:28:58.860 And now, and we'll go through all of this, but now Joe Biden's, he wants to undo it all.

00:29:04.380 He wants to revert back to the Obama-era system where cross-examination is no longer available,

00:29:12.160 discovery is no longer available.

00:29:13.400 You can't have a lawyer in the proceeding with you.

00:29:15.160 And the person, quote, trying your case more than likely is some sexual assault advocate

00:29:21.780 who's got her thumb on the scale.

00:29:24.500 She's not, this is not an impartial arbiter.

00:29:26.820 Do I have it about right?

00:29:28.140 You do, you do.

00:29:29.480 Yeah, I mean, I think that I would agree, and I agree with your description of the Trump

00:29:34.480 policy.

00:29:35.020 I mean, you know, this was not an administration that did many things carefully.

00:29:38.860 But in this area, they did, and I think they did because of DeVos.

00:29:42.820 I mean, DeVos is a very controversial education secretary, but her handling of this issue was

00:29:49.920 very deliberate.

00:29:51.800 She went through the normal processes in a way that the Obama people did not.

00:29:57.200 You know, the regulations that they issued took into account court rulings in this area.

00:30:03.780 There have been almost 200 favorable rulings for accused students.

00:30:06.800 And people, you know, outside of education, I think in some ways can struggle to understand

00:30:11.700 how unusual that is.

00:30:14.000 Courts tend to be really deferential, for understandable reasons, to colleges on disciplinary

00:30:19.980 cases, because basically federal judges don't want to get in the habit of saying that a student

00:30:24.840 getting a B rather than a B plus is a due process violation where they can run off to federal

00:30:29.680 court and, you know, and try to get the judge involved.

00:30:32.520 So that students were winning these lawsuits, there's no comparable, you know, episode for

00:30:39.640 this in American higher education in the last 25 or 30 years.

00:30:43.460 And DeVos's approach was basically to say, look, Title IX is an equity law.

00:30:48.660 It requires fair treatment for all students.

00:30:51.340 Just as you can't discriminate against female students who are filing sexual assault complaints,

00:30:56.420 you also can't discriminate against male students who are accused of sexual assault complaints.

00:31:01.060 And colleges have to treat these cases fairly.

00:31:03.860 So she, you know, she required schools over the vitriolic, ferocious opposition of most

00:31:09.760 colleges and universities to create fair systems in which, you know, students would get at both

00:31:14.980 students, accused or any accused, would get access to the evidence.

00:31:18.160 There would be cross-examination done through their advocates.

00:31:20.780 So you wouldn't have direct cross-examination by the parties, which DeVos worried would be too

00:31:25.280 traumatizing, and also where the hearing panels would be trained fairly and schools would have

00:31:33.880 to publish that training to make sure that they weren't introducing secret biases in the

00:31:39.200 training process.

00:31:40.880 So, you know, one of the intriguing things is that the number of lawsuits since the regulations

00:31:44.740 have been adopted have plunged because accused students are now getting fair treatment thanks

00:31:50.020 to the existence of these wrecks.

00:31:54.680 She, the new process, re-emphasizes the presumption of innocence and equitable treatment.

00:32:01.820 It gives school the flexibility to choose which evidentiary standard they're going to use,

00:32:06.240 preponderance of the evidence, which is, as you say, 50 plus a feather versus clear and convincing,

00:32:11.060 which is more like 75% chance it happened.

00:32:12.920 And it suggests we should adhere to the more narrow definition of sexual harassment that's

00:32:20.260 been put out by the Supreme Court.

00:32:21.640 Unwelcome conduct that's so severe, pervasive, and objectively offensive that a college must

00:32:26.920 have live hearings and cross-examination.

00:32:28.640 But it recognizes that within that definition there would be sexual assault, dating violence,

00:32:34.820 domestic violence, stalking, none of which would have to meet a severe and pervasive standard.

00:32:39.280 So to me, I read this as this is a woman bending over backwards, to be fair, to both sides,

00:32:45.460 and also said that the schools cannot impose discipline on accused students until the end

00:32:52.000 of the case because these people were basically getting their scholarships yanked, getting all

00:32:57.900 Fs in their classes because they were bounced off of campus.

00:33:01.240 Their lives were effectively ruined before any judgment came down, and she fixed that.

00:33:06.980 Correct.

00:33:07.440 Correct.

00:33:07.880 Yes.

00:33:08.080 So, okay.

00:33:09.980 So the victims' rights groups all along were promising to challenge.

00:33:12.920 But unlike Obama, who just did this through a letter, she did this by what?

00:33:18.620 She did something that was sort of more lasting and tough to undo.

00:33:22.260 Correct.

00:33:22.500 She went through this federal law called the Administrative Procedures Act, which gives to

00:33:29.240 federal agencies the authority to make regulations, which have the same effect of law.

00:33:34.600 But to make regulations, you have to draft the regulations.

00:33:37.460 You then publish them.

00:33:38.860 You solicit comment from the public.

00:33:41.420 There were more than 100,000 comments on the proposed regulations.

00:33:46.800 And DeVos' team adjusted the final regulations in response to these comments, which means that

00:33:53.100 the regulations, when they were issued, they were issued earlier in 2020, carry the force

00:33:57.800 of law.

00:33:58.260 They cannot simply be withdrawn with the stroke of a pen by President Biden, which is clearly

00:34:04.720 what he would like to do.

00:34:05.660 I mean, he said in the campaign that his goal would be to eliminate these very quickly.

00:34:10.100 Now, the regulations were challenged by—there were four lawsuits filed against them, two

00:34:16.540 by victims' rights organizations, one of which, in a moment of everlasting shame for

00:34:22.140 the organization, was represented by the ACLU coming out against campus due process.

00:34:28.400 And the other two—it's unimaginable.

00:34:31.160 And the other two were lawsuits filed by New York State and then by a coalition of blue

00:34:36.940 states in D.C.

00:34:37.940 All of those lawsuits so far have been unsuccessful, although the Biden administration suggested

00:34:44.820 putting one of the lawsuits on hold for 60 days while the administration reconsiders its

00:34:51.060 approach to the rule.

00:34:52.320 And it's clear that the administration is going to try to move away from the rule as quickly

00:34:56.720 as they can, but they cannot simply abolish it with the stroke of a pen.

00:35:00.860 They'll have to go back through a notice and comment process themselves.

00:35:04.780 It's like we create one system, then we undo it and create the other.

00:35:09.160 And at least it's not in executive order, which he could just undo with an eraser.

00:35:14.220 But he's determined.

00:35:15.860 I mean, he is determined.

00:35:17.940 And it's kind of crazy when you think about the fact that he himself has been accused—I

00:35:22.140 know, I interviewed Tara Reade very publicly of a disgusting, disturbing act that he just

00:35:30.260 has no appreciation for due process.

00:35:33.100 You know, I think Tara Reade would tell you due process is important, too.

00:35:36.880 But he's too interested in pandering right now.

00:35:39.620 And it's going to hurt a lot of young men.

00:35:42.540 It's going to hurt them.

00:35:43.340 It's going to ruin their lives.

00:35:44.320 That's what we saw in the Obama years.

00:35:45.880 People were having their lives ruined or nearly ruined.

00:35:49.120 And this is where I'd like to get into a couple of the cases.

00:35:52.140 So let's just start with what happened to Grant Neal, because that was the case that

00:35:57.000 stayed with me.

00:35:57.780 That one in the Amherst one that you and I discussed one time in the Kelly file.

00:36:01.280 Grant Neal, young African-American athlete at Colorado State, GPA of almost 3.7, had a sexual

00:36:11.760 encounter with his girlfriend, which neither one of them thought was rape.

00:36:16.000 As I recall the facts, there was a portion of the sexual encounter where he didn't have

00:36:22.380 on a condom and she wanted him to have on a condom.

00:36:25.020 And so he waited a little and then he put one on and she was convinced by the roommate.

00:36:30.820 It's correct me if I'm getting this wrong, that that that those moments were non-consensual

00:36:36.900 and rape, essentially rape.

00:36:39.280 And the school agreed, right?

00:36:43.580 Do I correct me if I'm wrong?

00:36:45.780 Correct.

00:36:46.140 And there was one additional factor in this case.

00:36:48.960 The roommate then reported this to people in the athletic staff at Colorado State, and

00:36:55.780 they were the people who filed the the allegation against Neal.

00:37:00.200 So you had almost a game of telephone where an initial event that both parties considered

00:37:05.460 to be consensual was redefined by this conversation between the student and her roommate, and then

00:37:11.860 was subsequently redefined by a kind of third party allegation.

00:37:15.880 And the university, which used a system, this was a case that occurred during the Obama

00:37:20.000 years, there was no hearing, there was no opportunity for Neal to challenge the evidence.

00:37:26.560 And this was a weird case where there was really no accuser because the people filing

00:37:30.160 the accusations had no first-hand or even second-hand knowledge of the allegations.

00:37:36.540 The university in this case, I think there were two things that were going on in the Neal

00:37:40.400 case that make it so important.

00:37:42.580 The first is the university was afraid of the Obama people cracking down and launching an

00:37:46.560 investigation of them if this came out.

00:37:48.860 And second, this is an area, these campus Title IX cases, in which there are disproportionate

00:37:55.080 numbers of cases where the accused student is African-American, especially cases where there

00:38:01.480 is a white accuser and an African-American accused student.

00:38:06.940 And in virtually any other context, that kind of fact pattern would, for very good reasons,

00:38:13.620 really concern liberals, civil libertarians.

00:38:17.620 But here it's just sort of been ignored.

00:38:20.940 And Neal was lucky, he got a good lawyer, he drew a pretty good judge who considered the

00:38:29.280 case fairly in Colorado, and it was an important ruling that said that the university handled

00:38:35.000 this totally unfairly.

00:38:36.100 And after that ruling came out, the university settled.

00:38:39.500 Yeah, of course.

00:38:40.760 Thank goodness, because poor Grant lost his scholarship, he lost his place on the team.

00:38:46.200 He had his life ruined over an allegation.

00:38:48.280 As you say, even the accuser, the woman who should have been the accuser, was saying wasn't

00:38:52.520 true.

00:38:52.960 She came out and said, he is not a rapist.

00:38:55.800 He is not a criminal.

00:38:57.220 I was not raped.

00:38:58.860 And still his life was ruined.

00:39:00.620 That's how messed up these procedures were.

00:39:03.400 And as you rightly point out, the people who have taken a look at these at these violations

00:39:08.500 of due process say they do have a disproportionate impact on students of color who get accused

00:39:12.780 more, that black students are four times as likely as white students to file lawsuits alleging

00:39:18.760 a due process rights violation.

00:39:21.840 And so we do need this is one situation where we really do need to be paying attention to

00:39:26.300 the disparate impact and people should be jumping up and down about it, trying to right a historical

00:39:31.020 wrong.

00:39:32.880 Absolutely.

00:39:33.480 But but but they're not.

00:39:35.440 So, Grant, when he came on the Kelly file, he had filed the lawsuit, but it wasn't yet

00:39:39.400 resolved.

00:39:40.620 What they settled?

00:39:41.960 They settled.

00:39:42.740 And that is that is the common practice in these cases.

00:39:45.620 You know, universities generally they'll they'll lose at an initial stage of the of the litigation

00:39:52.360 and they desperately do not want to go to trial because when they do, they they uniformly

00:39:58.180 lost in this area.

00:39:59.560 And the problem for universities when it goes to trial is it exposes their dirty laundry,

00:40:03.500 which they don't want, you know, which they don't want laid out.

00:40:07.300 But a student like Neil, you know, he he ultimately got a settlement.

00:40:11.240 Presumably the settlement was a pretty favorable one.

00:40:13.100 Otherwise, he wouldn't have settled.

00:40:14.260 But he can't get his college experience back.

00:40:16.120 He can't get his athletic scholarship back.

00:40:17.880 You know, that that's just gone.

00:40:20.680 Right.

00:40:21.160 And now I can't talk about it because these things always have gag orders.

00:40:23.680 Correct.

00:40:24.340 So you're no longer allowed to explain to people what happened to you.

00:40:28.340 So, OK, let's talk about Amherst.

00:40:30.520 This is one of the of all the stories I covered while I was at Fox News.

00:40:33.860 This is one of the ones that stands out to me because it was such a travesty of justice.

00:40:40.560 Can you give us a general overview of what happened in the in the Amherst case?

00:40:44.380 This is just it's a shocking case.

00:40:46.160 So this is a case where you have an accused male student who was drinking very heavily one

00:40:50.840 night on a weekend.

00:40:51.800 His his girlfriend was out of town.

00:40:54.440 The the roommate of his girlfriend encountered him.

00:40:57.340 They started making out.

00:40:58.480 She invited him back to his to their room.

00:41:02.060 She performed oral sex on him.

00:41:04.900 She immediately seems to have recognized that what she did was wrong.

00:41:08.560 And she started texting friends saying that she needed to come up with a good lie, because

00:41:14.080 otherwise, if it got out that she had seduced her roommate's boyfriend, she would lose all

00:41:18.100 of their her friends.

00:41:20.100 It did get out what she had done.

00:41:21.420 And she did lose all of her friends.

00:41:22.560 And she migrated into a campus victims rights group.

00:41:27.120 And 18 months later, she filed a Title IX complaint saying that she had been sexually

00:41:32.640 assaulted.

00:41:34.120 Amherst investigated this.

00:41:35.700 They never looked at the text.

00:41:37.220 They found him guilty.

00:41:39.520 The text that she had sent that evening, which contradicted her story in multiple ways beyond

00:41:44.080 just the assertion that she was searching for a lie to explain what happened, the texts

00:41:48.940 were discovered.

00:41:49.500 This is one of the most incredible facts in any of these cases to me by the accused student's

00:41:55.620 former girlfriend, who was furious at what he had done, you know, for reasons that I think

00:42:00.080 anyone can understand, but was also furious at the accuser because and she put this in an

00:42:05.440 affidavit.

00:42:05.920 She said, this is just this is a travesty for real victims for the accuser here to to do

00:42:12.200 this.

00:42:12.500 So so the the accused student has all of these texts, which are which are wholly exonerating

00:42:16.860 texts.

00:42:17.600 He presents them to Amherst and he says, look, you have to redo your your approach.

00:42:21.860 And Amherst response in subsequent court filings was was that wasn't the case because they

00:42:27.880 said under Amherst policy that texts from an accuser would only be relevant if they came

00:42:35.020 after the accusing student had decided that she was sexually assaulted.

00:42:39.720 But this is just an extraordinary way of of doing things.

00:42:43.540 So you have a situation where you have all of this exculpatory evidence.

00:42:46.880 And Amherst said it doesn't matter because she she later described that she was was sexually

00:42:50.880 assaulted.

00:42:51.500 So he was expelled and he was expelled, interestingly, by name.

00:42:56.380 So he was identified by name in a campus wide email at Amherst.

00:43:00.320 So everyone knew that he was identified as as as a rapist and he sued.

00:43:05.000 And his lawyer is is one of the very best lawyers in this area.

00:43:08.980 Guy named Max Stern, who practices out of Boston.

00:43:11.360 And what what Stern did was he recognized he had an he had an innocent client.

00:43:16.760 And this was a case where not only was the client innocent, but under Amherst definition

00:43:21.940 of sexual assault, the accusing student in this case actually had sexually assaulted the

00:43:27.520 male.

00:43:27.980 Because under her definition, under her uncontroverted testimony, she brought him back to

00:43:33.740 the room.

00:43:34.460 She initiated oral sex on him.

00:43:36.320 She then said she withdrew consent in the middle of the oral sex.

00:43:40.080 But he was incapacitated.

00:43:41.860 He was experiencing an alcoholic blackout for the entire time.

00:43:44.720 Amherst ignored all that.

00:43:46.000 So it went it went to federal court.

00:43:47.960 The court issued a preliminary ruling greenlighting basically the entire lawsuit.

00:43:53.980 And Amherst very quickly settled thereafter for for reasons that were that were easily

00:43:58.160 understandable.

00:43:58.980 But this was an extraordinary case where, again, if anything, the victim in this case

00:44:03.420 of sexual assault was the male student.

00:44:06.600 And it was a case where you have you have a college.

00:44:09.620 The reason that colleges and universities exist in in our country is that they're supposed to

00:44:13.740 be be beacons of the truth.

00:44:15.700 They exist to pursue the truth.

00:44:17.500 And here the college was saying, we don't care about the truth.

00:44:20.100 We just care about getting this guilty finding and kicking this this guy out.

00:44:24.600 And this was another student of color case.

00:44:26.760 So the accuser in this case was white.

00:44:29.260 The accused student was Asian-American.

00:44:31.700 And yet there there was no concern about racial disparities on on campus.

00:44:37.500 This is like just hearing it is making my blood boil.

00:44:41.340 The looking back at some of those texts.

00:44:43.700 So this is a girl who goes in there at the hearing and says, like, I was I was sexually

00:44:47.920 assaulted.

00:44:48.600 I was raped.

00:44:49.820 And, you know, my activist friends have helped me understand.

00:44:53.400 You know, I was his victim.

00:44:55.460 And what what came out, thanks to her ex friend, her ex roommate, who was, you know, the girlfriend

00:45:03.500 of the accused at the time, who then, as you point out, leader was just mad, mad about

00:45:07.580 the whole thing.

00:45:08.040 But she had seen the texts is the alleged victim was texting around about the alleged

00:45:13.160 her alleged rape, quote, obvi, I was not innocent.

00:45:18.180 And then as soon as it was over, she texted an RA saying, OMG, I just did something so fucking

00:45:23.840 stupid.

00:45:24.460 And the RA says, what?

00:45:25.440 And she says, I effed John Doe.

00:45:27.420 Well, John Doe is what we're calling the guy in this case.

00:45:30.400 And the RA says, no, you didn't.

00:45:31.980 She says, yes, I did.

00:45:33.340 And then what did this woman who took the stand and talked about how traumatic it was

00:45:37.220 for her was so traumatic what he did to me.

00:45:39.500 What did she do when the encounter was over?

00:45:41.440 She said, I was so traumatized that I just called a friend because I needed to be comforted.

00:45:46.760 I was distraught.

00:45:47.840 Yes, I happened to be a male friend, but, you know, I needed some comfort.

00:45:51.740 And it turns out she she had sex with that guy, too.

00:45:56.060 Another guy comes over and she has sex with him and her texts about him.

00:46:00.740 I'm going to quote now because she's irritated and she's texting her friend about why it's

00:46:05.780 taking so long for this guy to have sex with her.

00:46:08.200 And she texts, why is he just talking to me like hot girl in a slutty dress?

00:46:13.940 Make your move.

00:46:15.560 Yeah.

00:46:16.380 And then the follow up text the next day was, OMG, action did not happen till five in the

00:46:21.040 effing morning.

00:46:22.460 This girl got away with ruining the first kid's life.

00:46:27.880 And this was a case where those texts with the sexual encounter with the second guy were

00:46:33.200 so important because what she told the panel and the panel seems to have believed her here

00:46:37.780 is that she was so traumatized that she had to invite a friend.

00:46:41.620 And so for the for the hearing panel that found this the guy guilty, they believed that she

00:46:47.120 had a friend and she probably cried with this person for the evening describing, you know,

00:46:51.000 her traumatized event.

00:46:51.700 And when the text came out, it was discovered that this was that she simply lied.

00:46:56.440 And so, you know, in some of these cases, you know, the the accuser isn't so much lying

00:47:01.560 as it's it's a kind of ambiguous case and an affair process wouldn't yield a guilty finding.

00:47:06.960 But it's this is this this was a case of malevolence.

00:47:09.500 I mean, this this was an accuser who was just simply lying out.

00:47:12.540 Right.

00:47:12.800 And and again, the college didn't care that.

00:47:15.340 How did they not care?

00:47:16.300 I don't get it.

00:47:17.060 I recognize you're saying we're not going to pay attention to the text, they said, because

00:47:21.740 they post dated the event.

00:47:24.180 And somehow I saw baloney, but I don't even understand how they could even pretextually

00:47:29.340 get away with that.

00:47:31.500 And to me, that's that's what so I mean, I'm a college professor.

00:47:34.960 I'm an academic lifer.

00:47:36.000 I've been on campus for my entire life.

00:47:37.980 And, you know, these are students, you know, and the colleges simply do not care.

00:47:43.560 There's a there's a kind of greater good mentality that seems to have taken root on the Title

00:47:48.060 Nine issue where it's like, yeah, maybe this John Doe and Amherst is is innocent.

00:47:53.760 Maybe Grant Neill is innocent, but their lives need to be sacrificed for a greater good of

00:47:59.300 ensuring that we eradicate sexual assault on on campus.

00:48:03.500 And if a few innocent people get punished, well, you know, that's the way the cookie crumbles.

00:48:07.020 And it's it's it's it's not the way we should be looking at campus justice.

00:48:12.020 You know, I had a friend at Fox who was tangentially related to my year with Trump coming after me

00:48:20.440 and all that crazy stuff.

00:48:22.540 And, you know, at the time I was not really in love with Donald Trump and not not a huge

00:48:28.460 fan of his back in the day, I'd say.

00:48:30.560 And and he was supportive of me and understood all that.

00:48:34.600 But we were covering a lot of this on the Kelly file right up to my last day at Fox News.

00:48:40.120 And we had a very honest conversation toward the end, like right before the election.

00:48:45.560 And he said he had a young son who was going to be going off to college soon.

00:48:51.240 And he was going to vote for Trump because of this.

00:48:54.840 And people look back.

00:48:55.920 They don't understand how he got elected.

00:48:57.660 They look like he's horrible.

00:48:58.960 But look what he did to women.

00:49:00.720 But it's like I get all that.

00:49:02.460 And I understand his flaws and, you know, real and imagined.

00:49:07.160 Right.

00:49:07.360 There's a lot with Trump.

00:49:08.540 But this is exactly what what would drive people to go.

00:49:12.240 I mean, I can understand.

00:49:13.080 I got two boys, too.

00:49:13.900 I've got a daughter and two boys.

00:49:15.720 And God, no, I don't want them going off to college with this system in place awaiting

00:49:21.760 them.

00:49:22.720 Right.

00:49:23.420 Right.

00:49:24.220 That's that.

00:49:25.020 Absolutely.

00:49:25.480 I mean, you know, I think that anyone who has a college age son.

00:49:27.960 I have two nephews and, you know, it's it's it's so transparently unfair.

00:49:33.980 And I think what frustrates a lot of fair minded people is that defenders of this, you

00:49:39.980 know, of the Obama Biden system that was in place are simply impervious to to any kind

00:49:46.180 of criticism.

00:49:46.820 I mean, Biden has never even acknowledged any of these lawsuits.

00:49:50.200 You know, the Democratic legislators, I mean, Nancy Pelosi, Christian Gillibrand has been

00:49:54.880 outspoken on this in the in their minds.

00:49:57.380 This is essentially a perfect system.

00:49:59.980 And it's, you know, it may be many things, but it's certainly not perfect.

00:50:03.900 And, you know, it's it's a good and and, you know, because if this were the criminal justice

00:50:11.520 system, these trials would be public.

00:50:13.100 And I think there would be there would be uniform outrage at how blatantly unfair the

00:50:18.240 pre-DeVos hearings were.

00:50:21.360 But because on campus, you know, campus tribunals are always private because of this federal law

00:50:27.880 called FERPA, which ensures that student academic records and educational records are nonpublic.

00:50:35.080 It you only learn about these excesses as a result of the lawsuits that often are months

00:50:40.100 or years after the fact.

00:50:41.660 Mm hmm.

00:50:42.960 So and the the other thing, the other theme I'm seeing and looking at some of the cases

00:50:47.600 that did come out is how biased the supposedly impartial arbiters are toward what would become

00:50:55.840 the meme, believe all women.

00:50:58.500 And that takes me to the Oberlin case where I mean, there was like that was that was made

00:51:04.640 explicit that was made explicit in a case of of a young man who had they met at a party

00:51:12.340 in December 2015.

00:51:13.980 They had unprotected sex that night.

00:51:16.280 He and his accuser really didn't see each other much for the next two months.

00:51:20.220 Then February 2016, she drank.

00:51:23.460 She texted him at one in the morning.

00:51:24.980 Ladies, nothing good ever comes from that.

00:51:27.020 Do not text anybody at one in the morning.

00:51:28.620 Every man alive considers that a booty call, said she was going to smoke some pot.

00:51:33.360 Could she come up after no man on earth has ever said no to that?

00:51:36.400 Like he understands exactly what you seem to be offering.

00:51:38.860 Let's get real.

00:51:39.600 Right.

00:51:39.880 Come on.

00:51:40.140 Let's get real.

00:51:41.340 She arrived at his his dorm, his room, 145 in the morning.

00:51:44.960 Small talk made out, took off their clothes.

00:51:47.280 Then they started having sex someplace in the middle of it.

00:51:50.200 They stopped.

00:51:50.920 She said she was thirsty.

00:51:51.960 He got her some water.

00:51:53.080 They resumed sex this time without a condom stopped again.

00:51:56.320 She said she wasn't enjoying it.

00:51:57.620 She was she was not she was I don't know how to put this in a way that's PG 13.

00:52:01.840 But she wasn't enjoying it.

00:52:04.600 Leave it at that.

00:52:05.160 And and said, I'm not sober.

00:52:07.600 And then he said, how about oral sex?

00:52:09.320 And she gave it to him.

00:52:11.160 That oral sex is the alleged rape.

00:52:14.520 She wound up saying that wasn't consensual because she had said out loud, I'm not sober.

00:52:22.420 And through a long, awful process, the school wound up agreeing with her.

00:52:28.080 And and expelled the guy.

00:52:30.920 And this this was a process where the Title IX coordinator at Oberlin was explicit that she saw the purpose of these of the adjudication process as protecting the right of survivors.

00:52:40.780 But of course, the goal of the process is to determine whether the complainant is a survivor.

00:52:45.080 You can't just assume that she's a survivor in the start.

00:52:47.920 And this was a case.

00:52:48.580 It was solely a credibility case.

00:52:49.880 There were there were there were only these two parties, the male and the female.

00:52:52.900 And this this was one where the the accusing student changed her story at the hearing and said that this oral sex was not only incapacitated, but it was but it was force.

00:53:02.320 The hearing panel didn't believe her on force.

00:53:05.040 So they said that she really isn't all that credible, but then creditor or incapacitation, even though, again, this this assertion of that it's I'm not sober, didn't meet the college's own definition of incapacitation.

00:53:17.500 And the framing for this, and this is this was something that the Sixth Circuit, which ruled on this case, stressed, is that Oberlin at the time was under investigation by the Obama era OCR for not doing enough to crack down on sexual assault.

00:53:31.180 And so had issued a public statement saying that that year, 100 percent of the cases that were adjudicated returned a guilty finding.

00:53:39.600 They were bragging about their 100 percent conviction rate.

00:53:42.460 Right.

00:53:42.900 They were happy about it.

00:53:43.680 That's that's what that's what they wanted.

00:53:45.260 And this case was inconvenient because the guy was so obviously innocent and they nonetheless had to sort of had to bastardize the facts.

00:53:54.200 And this case ultimately yields a victory.

00:53:57.540 Oberlin then settles very quickly after the Sixth Circuit ruling.

00:54:01.580 But here we have a student whose life is put on hold for four years.

00:54:06.620 You know, that that's that's an unfairness in and of in and of itself.

00:54:10.460 At a tender age, too, you know, it's a tender age, that transitional time from leaving your parents' house to going out there into the world.

00:54:18.780 You're not yet fully cooked.

00:54:21.000 You know, you you don't have all the skills you need to to handle this crazy life and all the stuff it delivers you.

00:54:26.680 I mean, that's one of the purposes of college.

00:54:28.560 But this is too much.

00:54:30.560 And when I read the guy's emails, you know, they call him John Dell, of course, in the proceeding and in the pleadings and so on.

00:54:37.980 But he he he was begging the person who was in charge of the process for some help.

00:54:44.080 He wasn't it was taking way more than it was supposed to take, like way more many, many months.

00:54:50.060 And he sent an email talking about his sleepless nights, how he developed eating problems.

00:54:56.880 He was constantly thinking about this.

00:54:58.520 It consumed my life, he said.

00:55:00.320 My grades have slipped.

00:55:01.780 Quote, I am a shell of my former self.

00:55:03.940 And saying he could not get in contact with this guy named Josh Nolan, who was the investigator, the head person, Raimondo, had appointed to his case, who he said had seemingly disappeared.

00:55:15.280 He had one one person who he was supposed to, you know, be able to talk to this guy, Josh Nolan, who's the investigator, who wouldn't talk to him.

00:55:24.120 And then the process gives each accused guy an advisor.

00:55:28.080 So he did have somebody there and that guy, Assistant Dean Adrian Bautista.

00:55:34.300 Why don't you explain to the audience what what a gem this person was?

00:55:37.740 Yeah, this is.

00:55:38.400 So and this is a guy who was appointed by Raimondo.

00:55:40.780 So you have a system where the Title IX coordinator, who who says this should be a survivor centric process, appoints the advocate, the person who says to be advocating for the accused student in the hearing of Bautista leaves the hearing in the middle of the process.

00:55:56.640 Again, imagine a criminal trial where the lawyer just walks out halfway through and then a couple of weeks later tweets out that he believes he always believes survivors.

00:56:06.920 So this was a system where where the the accused student and that that email that you quoted, it's a poignant email because he's really trusting the college to do the right thing.

00:56:15.420 And he's naive in that respect.

00:56:17.740 The college gives him, again, an obviously biased advocate who who it's clear from his own words, didn't believe in his innocence, even in a case like this where the student was was actually innocent.

00:56:31.260 And no wonder he walked out.

00:56:32.760 He was like, I got this one.

00:56:33.760 I believe all women by John Doe.

00:56:36.740 And then here, too, as in the case that we just discussed at Amherst.

00:56:41.140 So this guy gets expelled.

00:56:43.480 This innocent man gets expelled.

00:56:46.020 He appeals.

00:56:47.460 And one of the things he cited was newly discovered testimony from Jane Doe's former best friend, a guy who went by the initials JB, came forward when he heard that this guy had been expelled and said to the university, you made a terrible mistake.

00:57:04.260 Like she is not telling the truth and said she and JB, JB is her ex best friend, had a conversation right after this happened.

00:57:15.240 She admitted this guy did not use force on her.

00:57:18.940 And when JB got a look at the hearing testimony, he said it contradicted her story to him in many, in many ways.

00:57:25.560 And that he went with the woman when she first wanted to report this and sat right next to her.

00:57:30.700 So he he heard her then and he was like, hmm, she's saying different things than she said to me privately.

00:57:36.240 But I'm sure this investigator she's talking to is going to contact me.

00:57:39.020 Right. And then and then that guy said, yeah, I will.

00:57:41.440 I will contact you.

00:57:42.160 Don't worry.

00:57:42.560 Well, I'll interview you alone.

00:57:44.060 Never did.

00:57:45.380 So this poor kid JB sitting there like, oh, my God, my best friend.

00:57:48.240 She's claiming to be a victim.

00:57:49.600 I know her story's changing.

00:57:51.260 She's lying about material stuff.

00:57:53.080 Maybe they'll call me.

00:57:54.260 Holy cow.

00:57:55.420 He's expelled.

00:57:56.840 So the guy does the right thing.

00:57:57.960 He raises his hand, jumps up and down and says, she gave false testimony.

00:58:02.100 And what happened?

00:58:04.240 And and the and the is simply ignored the the the appeals process has no interest in hearing from from this.

00:58:11.340 And the decision is is reiterated.

00:58:13.920 And again, this is sort of like the Amherst case where you ask yourself, how can how can the institution be indifferent to what is clear evidence that they got the original decision wrong?

00:58:26.740 And and and yet in here as as an Amherst, they they were.

00:58:32.700 And this student, you know, the guy who spoke up, this JB, you know, this took a considerable amount of courage on his part.

00:58:40.540 You know, he's you know, he's existing on a campus where there's where there's very strong pressure to believe the woman again, you know, for for for understandable reasons in a broad respect.

00:58:49.720 He knows in this particular case that the woman is lying and he takes some risk in going forward.

00:58:56.300 I'm sure he lost some friends as a result of what he did.

00:58:59.280 And yet the college doesn't reward that courage at all.

00:59:02.020 They basically say, you know, we don't care.

00:59:03.740 We'll get back to Casey Johnson in just one second.

00:59:08.180 I'm going to talk to him about if we impose these standards again on young men facing charges on college campuses, the Obama Biden standards from 11 and 14.

00:59:17.060 Why shouldn't Joe Biden have to face those same standards with all the accusations that have been hurled against him?

00:59:21.500 Let's see how he likes it.

00:59:23.040 Right.

00:59:24.220 That'll be an interesting discussion.

00:59:25.620 Stay tuned for that.

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01:01:08.120 Enjoy it.

01:01:09.200 And now before we get back to Casey Johnson, we're going to bring you a feature now we call Asked and Answered here on the program where we get into some of our listener questions.

01:01:19.300 And our executive producer, Steve Krakauer, has got today's question.

01:01:23.280 Hey, Steve.

01:01:23.860 Hey, Megan.

01:01:24.340 This is a good one.

01:01:25.100 It comes to us from one of our younger listeners, I would say, a college student named Mason Stefansik.

01:01:30.000 He emailed questions at devilmaycaremedia.com, and you can too.

01:01:34.560 Mason wants to know, he's a junior at college in Colorado, and he's wondering your thoughts on whether college is even worth it right now.

01:01:40.240 He says, do you think there will be a transition from the workforce valuing a degree in 10 years or less?

01:01:45.900 That's a great question.

01:01:46.760 College is so expensive, and I feel like as a parent of three kids who will be in college at some point, not only are they so expensive, but they're going to indoctrinate my kids into beliefs I don't share and try to turn them against me.

01:02:00.520 And then they'll get out with a bunch of debt.

01:02:02.980 My kids won't.

01:02:03.760 Let's be honest.

01:02:04.280 I'll pay for their college.

01:02:05.200 But most kids will.

01:02:06.780 And a job that doesn't come near to covering the loans.

01:02:09.700 So I get why you're asking the question.

01:02:12.880 I would still say it's worth it.

01:02:14.620 That's my own personal opinion.

01:02:15.880 But I wouldn't pay all that money, like, for a Harvard.

01:02:19.160 Like, if I were funding my own college education, I would look for a state school that's got a good reputation, maybe in the city or the state where I want to be, you know?

01:02:27.660 Because that always works well.

01:02:29.020 Like, I went to Albany Law School, which is certainly not, like, the greatest law school ever made.

01:02:33.100 But for New York State, it's amazing.

01:02:35.640 And I was competing with all the Harvard and Yale and University of Chicago law graduates for those top jobs in New York City because they were familiar with Albany Law, right?

01:02:45.500 So you could say the same thing for colleges, you know, undergraduate colleges.

01:02:51.140 Sort of be strategic is what I'm saying.

01:02:53.660 I also think you need to gird yourself for the ideological battle ahead and just understand what they're going to be doing to you.

01:02:59.060 And I have this debate all the time with one of my close friends.

01:03:01.720 Do you tell your kid to go along to get along?

01:03:04.240 Do you tell him to pretend to be a liberal so that he gets an A instead of, like, challenging these far-left ideas and get a C?

01:03:12.240 That's an individual choice, right?

01:03:14.400 You better be really, really likable if you're going to do the latter.

01:03:17.980 Or you could just play the game and get through.

01:03:19.800 Either way, it's bullshit, right?

01:03:20.900 It's bullshit that people who don't have far-left views have to even think about this stuff.

01:03:24.940 I'll end with this.

01:03:26.180 I met what I said earlier.

01:03:27.440 I do think that those are tender years.

01:03:29.180 And when I think back on my college experience, and granted, it wasn't too far left in its indoctrination.

01:03:34.460 I actually had a wonderful four-year stint at Syracuse in many ways.

01:03:38.400 I think back on my social experiences more than ever.

01:03:41.700 I wish I had had the Douglas Murray, you know, experience of reading these books and feeling connected with history and coming to the realization I wasn't the only one to ever have these thoughts.

01:03:51.480 And that sounds amazing.

01:03:53.140 Maybe you get that at the Ivies.

01:03:54.580 I wouldn't know.

01:03:56.880 But I do think sort of the coming of age that happens in those four years is wonderful.

01:04:03.080 It's wonderful.

01:04:04.560 Living away from home for the first time, being surrounded by people your age, and it's incredibly social and fun.

01:04:11.260 And, you know, you have tons of friends.

01:04:13.900 You know, you're just surrounded by tons of, in my case, girlfriends.

01:04:16.760 And then, you know, I fell in love, and it was just like, between my close girlfriends and the boyfriend I had for most of my college years who really changed my life, I wouldn't give that back for anything.

01:04:28.320 It was transformational for me as a person, as a human.

01:04:31.920 So, yeah, I mean, that was my experience.

01:04:33.820 I realize things have changed a lot.

01:04:35.660 And I will say this.

01:04:36.620 I don't think that you need it to get a job.

01:04:39.180 I really don't.

01:04:39.720 And I think a lot of people, especially on the right half of the country, are not seeing that four-year college degree as necessarily an asset.

01:04:47.420 I think, you know, you can strategically come up with a different plan that might serve you better in getting a job if you want to work at a place like Fox or, I don't know, any of these entrepreneurs, too.

01:04:58.260 I think they're smart.

01:04:58.860 They understand scrappiness better than they may just a big degree from an expensive school.

01:05:04.700 And, like, you don't want to be turned into a nerd, right?

01:05:06.740 Like, I don't know.

01:05:07.700 EQ is important in life, too, people.

01:05:09.880 Right?

01:05:10.140 Like, good grades are good, but you need to be able to function in this world in a way that where people like you, they want to be with you, you have a sense of humor, you understand social, sports, forgive me, and other references.

01:05:22.460 And that's another thing you can work out in college.

01:05:24.440 So it's not all about the academic payoff.

01:05:27.900 So that's my long way of saying I think it's worth it depending on the cost.

01:05:31.680 I think go for the cheaper school.

01:05:33.960 Be strategic about it.

01:05:35.460 But I wouldn't rule it off on principle.

01:05:39.660 Yet.

01:05:40.740 Thanks for the question, Mason.

01:05:42.580 Now back to Casey.

01:05:47.540 There was another case that happened.

01:05:49.700 Gosh, was it Brandeis?

01:05:50.900 Where it was two gay men, lovers, for the better part of two years, in a romantic, sexual, consensual relationship.

01:06:01.240 They break up four months later.

01:06:03.700 One decides after attending sexual assault training sessions that his thinking was changing and that, in fact, he had been the victim of numerous inappropriate, non-consensual sexual interactions over the 21 months he'd been with this other guy.

01:06:16.440 Now, that's not impossible.

01:06:18.380 I guess, you know, so let's walk us through it.

01:06:20.900 What happened?

01:06:22.080 And what sorts of complaints was he raising?

01:06:25.100 This is just, it's a truly incredible case.

01:06:28.060 The accused student was given no notice.

01:06:31.380 The complaint filed was two sentences basically saying my entire affair, my entire relationship was non-consensual.

01:06:40.040 And the accused student, again, another one of these, John Does, was found guilty of, among other things, looking at his then boyfriend in the nude in the bathroom without asking advance permission.

01:06:53.340 Oh, my God, that's called a relationship.

01:06:54.800 It's called a relationship.

01:06:55.680 Or waking his then boyfriend, you know, in the morning with kisses.

01:07:00.700 And by this definition of sexual assault, virtually any married couple in the country would have committed sexual assault at one point or another.

01:07:08.260 It was an extraordinary case because the investigator in this, there was no hearing at all in the Brandeis case, basically decided to ignore context entirely.

01:07:16.800 And what she did was to interpret each of these events as if these two students were meeting for the first time.

01:07:24.380 So, obviously, if you have someone who you don't know and you look at them in the nude without asking me, it's a peeping Tom case or something like that, that's sexual misconduct.

01:07:33.600 But this was not what was going on here.

01:07:35.380 It's not a peeping Tom.

01:07:36.500 They were together for almost two years and the testimony in the case was that it was a relatively good relationship until right near the end and then it was a breakup.

01:07:46.960 So, it was a factually absurd case.

01:07:50.700 And yet again, we had a guilty finding.

01:07:53.280 This guy was not expelled, but his name leaked out and he wound up losing an internship and then a job as a result of this decision.

01:08:01.740 So, again, there was a discreet harm as a result of this absurd approach.

01:08:07.660 And we talked in the Oberlin case about these appeals.

01:08:11.440 This guy appeals, too, because he says, look, this is an obviously unfair process.

01:08:15.960 And in the appeal, Brandeis refuses to give him the investigator's report on which he was found guilty.

01:08:22.100 So, he was quite literally appealing blind.

01:08:24.160 He had no way of knowing, you know, what, you know.

01:08:26.740 So, of course, the appeal was denied.

01:08:31.020 And this was the case, the judge in this case, a judge named Dennis Saylor, said that to him this process more resembled Salem in 1692 than Boston in the 2000 teens.

01:08:43.460 And I thought that was a pretty appropriate comment.

01:08:46.420 I know.

01:08:47.160 I'm just looking through the allegations.

01:08:49.380 The accused would look at the accusers' private areas when they were showering together.

01:08:54.520 Okay, so I got an idea.

01:08:56.980 I have a tip for you, accuser.

01:09:00.540 And then John, that's the accused, would occasionally wake up J.C., that's the accuser, by kissing him and sometimes persisted when J.C. wanted to go back to sleep.

01:09:12.480 Oh, my God, that's marriage.

01:09:13.820 If I were the victim of a sexual assault every time Doug woke me up and persisted when I wanted to go back to sleep.

01:09:20.600 Are you kidding me?

01:09:21.620 We've actually had a long talk.

01:09:22.720 I've said, honey, you don't want me under those conditions.

01:09:25.040 Trust me.

01:09:25.540 Because when you actually do get me woken up, I'm just going to be grumpy.

01:09:28.360 It's not going to be good for either one of us.

01:09:29.700 In what weird world is it when a consensual relationship where somebody persists a little after an initial, like, I'm too tired, turns into assault, but it's happening and it's getting blessed by grownups who aren't completely drunk.

01:09:44.100 Right, right, right.

01:09:44.960 That's the thing.

01:09:45.780 I mean, these are conscious, deliberate decisions by the university administrators, and the only reason we know about it is that this student had enough money at least to hire a lawyer, and the lawyer in the Brandeis case was a really good one in this area, and file this lawsuit.

01:10:04.620 You ask yourself how many students, you know, basically accept this because they can't get into federal court.

01:10:09.820 Federal court is expensive.

01:10:10.900 I mean, these lawsuits cost tens and, in some cases, hundreds of thousands of dollars.

01:10:15.780 And so it's a very, very troubling process.

01:10:21.400 Just looking through the procedures that Brandeis had put in place after the 11 and the 14 communications from the Obama team, the accused, they had eliminated a hearing of any kind.

01:10:33.280 Instead, they had instituted a special examiner who was going to conduct the investigation and decide the case.

01:10:39.260 Okay, great.

01:10:40.300 What could possibly go wrong with having the person who is the investigator also be the judge, jury, and executioner?

01:10:44.900 It was secret.

01:10:47.040 The accused was not entitled to know the details of the charges.

01:10:49.400 The accused was not entitled to see the evidence.

01:10:51.360 The accused was not entitled to counsel.

01:10:53.080 The accused was not entitled to confront and cross-examine the accuser, not entitled to cross-examine any witness.

01:10:58.700 The special examiner prepared the report, which the accused was not permitted to see until the entire process had concluded.

01:11:03.920 And then the special examiner's decision was final with limited appellate review.

01:11:09.320 I mean, how has this not been a front page story everywhere?

01:11:13.940 I mean, how is this even happening in the United States of America?

01:11:17.100 And the one good thing we have is Orange Man Bad came in and reversed it.

01:11:21.980 And now the sweet, sleepy Joe, he's a moderate.

01:11:25.420 He's not going to do anything radical.

01:11:26.580 Don't worry.

01:11:27.020 That's the lunatic fringe on the, you know, he's going to ignore them.

01:11:29.960 Not only does he want to reverse it all again, it's his, like, first action item.

01:11:33.720 It's on, like, day one.

01:11:35.940 He said, I'm going to get after this.

01:11:37.540 And he's trying, right?

01:11:39.460 So he really is trying.

01:11:42.200 Oh, yes, he's trying.

01:11:43.200 And I think there's almost no doubt that he will succeed in this effort.

01:11:47.060 He is someone who is deeply committed to this on a personal level.

01:11:50.640 You know, this is someone whose views on a whole swath of issues have changed over the course of his career.

01:11:57.000 But in this area, he is, you know, he's consistent.

01:12:00.480 And the great irony is pointed out earlier, under the system that he wants to impose on the nation's college male students,

01:12:07.020 he almost certainly would have been found guilty.

01:12:10.280 And not just in the Tara Reade case, but in all of these other cases where women came up and said that he was touching their hair and doing, you know, uncomfortable things.

01:12:18.040 And, you know, and his career would have been over.

01:12:21.060 And one of the most incredible things to me from the Reade case, you know, his campaign issued a statement saying that it was the job of the media to ask, you know, really hard questions of Reade.

01:12:32.160 But that's exactly what he wants to deny to students accused in these Title IX proceedings.

01:12:37.440 So you get this incredible double standard where, you know, a person running for the nation's most powerful office gets fairer treatment than an accused student who has, you know, really no backing,

01:12:49.560 no political support, no media support, no functioning support at all.

01:12:53.100 You know, I had assumed that after the Reade allegation, he would sort of realize the due process does matter.

01:13:00.140 And maybe you want to make sure you have a system where the accused has a chance to defend himself.

01:13:04.540 But he has he has he has doubled down on this earlier policies.

01:13:08.240 And of the cases we've discussed, I mean, that Amherst one is really God, it's awful.

01:13:12.820 Right. It's just so awful with a woman in the text and like, obviously, I wasn't innocent.

01:13:16.240 And here's the next guy who I'm going to have sex with 14 minutes after my alleged assault and all this stuff.

01:13:21.940 Can you tell us? I know there's an there's an update on the investigator who oversaw that case.

01:13:27.540 Correct. So the investigator in that case, who was a labor lawyer and education lawyer from from outside Boston,

01:13:33.240 was subsequently hired by other colleges and universities in Massachusetts, most prominently Williams College,

01:13:40.100 another excellent school in Western Massachusetts to train their Title IX coordinators.

01:13:45.060 So in a in a in a sane world, you would have someone who who is saying, you know, we don't care about I don't care about evidence of innocence from these texts,

01:13:53.840 because by that point, the accuser hadn't decided she was she was sexually assaulted.

01:13:57.900 So all of this exculpatory evidence doesn't matter that this person would would never be involved in another Title IX proceeding again.

01:14:04.700 Not only was she continued to be hired by Amherst, but she's now she's now training other words.

01:14:09.100 And and and I think that's that's a good illustration into the mindset in some of these cases,

01:14:15.220 even in these terrible cases, you know, like Brandeis and Amherst and Oberlin and and the Grant Neill state case at Colorado State.

01:14:22.320 The people who who mistreat these accused students almost never suffer any adverse career prospects.

01:14:29.860 And so so there's there's there's basically no deterrent to to a kangaroo court.

01:14:36.420 It's so messed up.

01:14:37.540 And and what's the consequence of being OK, so you get expelled or I mean, in all the cases I've been looking at,

01:14:45.480 it's like expelled almost all the time.

01:14:46.920 But let's say it's some penalty short of expelled. Do they get labeled?

01:14:51.460 Do they get labeled in any way that haunts them, the men?

01:14:55.120 They do. And this is I think one of the things that this is a newish policy.

01:14:58.760 I mean, it's only been around for for a decade or so.

01:15:01.560 So so, you know, in these cases, you know, their chances of going to graduate school

01:15:06.040 if they want to go to graduate school or to law school or to med school are basically zero because you have to you have to divulge

01:15:11.160 that you've been found guilty of sexual misconduct.

01:15:13.120 But if you project ahead a little further, any job that requires a background check later on in their careers,

01:15:19.700 they'll have to divulge that. And I mean, most businesses, for I think, quite understandable reasons,

01:15:23.580 are going to hire someone who's who's saying I've been found guilty of sexual assault.

01:15:27.500 You would assume that's reasonable.

01:15:28.280 That's insane. But by a kangaroo court, as you point out, it's not like you were found guilty in a court with real evidence,

01:15:33.540 evidentiary standards. Right.

01:15:35.100 But, you know, so so you have a situation where where these are basically life altering and lifelong punishments.

01:15:42.440 And for the students who are expelled, their chances of getting admitted to another school,

01:15:47.120 certainly another school at an equivalent level, in some cases, another school at all or zero.

01:15:50.800 And if you think of how the American economy is changing, a college degree is, you know, it's increasingly critical.

01:15:56.520 So these are decisions that, you know, over the course of their lives are going to cost these these students,

01:16:01.420 you know, hundreds of thousands of dollars in earning potential going to close off careers.

01:16:05.160 And of course, if they're guilty, they think that they deserve this and more.

01:16:09.480 The problem is that you have a system that really doesn't distinguish from from the innocent, from the from the guilty.

01:16:16.260 Why is there any way in which we can just get these hearings off of the college campuses, like out of their hand?

01:16:23.840 This is this is this doesn't even seem like a disaster that's fixable, even under the DeVos rules.

01:16:28.800 I mean, is there any alternative?

01:16:32.700 There are alternatives.

01:16:33.740 So one of the things that DeVos did that, you know, I think was was really quite commendable and got less attention is that it allows informal mediation.

01:16:41.640 It allows this this process called restorative justice.

01:16:44.680 So basically finding a way to to handle these cases without a black mark on the accused student, but maybe in a way that satisfies the interests of of accusers.

01:16:55.880 So that, I think, is the first the first possibility, basically making them non adjudicative as as a whole, lowering the stakes in terms of getting them fully off campus, though.

01:17:07.440 I think there there is there is no chance there.

01:17:09.800 You know, there's the Supreme Court decision from the 1990s called the Davis decision.

01:17:14.240 And in that decision, the Supreme Court said that schools can be held liable if they are indifferent, deliberately indifferent to sexual misconduct by one student against another student at the school.

01:17:29.020 So schools can't simply say, all right, you know, turn this over to the civil system, turn this over to the criminal justice system.

01:17:34.520 We're going to wash our hands because if they did that, they would be liable to lawsuits from victims.

01:17:40.100 So schools basically have to do it.

01:17:42.180 So the key is to find ways to to basically force them to do it fairly because they really, really don't want to do fair investigations in this area.

01:17:49.440 If if the DeVos rules stand, because it did catch my eye that it seems to be optional, whether they use a preponderance of the evidence standard versus clear and convincing.

01:17:58.720 If if the rules stand, must they afford more due process or is it optional for the most part?

01:18:06.320 They must.

01:18:07.180 So the only optional item in the DeVos rules are the stand is the standard of proof.

01:18:11.380 And all schools have chosen preponderance.

01:18:13.960 So that hasn't been a change.

01:18:15.000 But they must provide a hearing, they must provide cross-examination, they must provide access to the evidence, and they must provide unbiased training for the for the panelists.

01:18:26.220 And so, you know, it's not a perfect system.

01:18:29.020 I mean, schools don't have discovery power.

01:18:31.000 So you have the situation where an accused student might know that there's evidence, text evidence, for instance, that that will exonerate them, but you can't actually subpoena it.

01:18:39.180 But it's a much fairer system than than existed previously.

01:18:43.900 And one of the reasons I think the DeVos regs were so good is that they basically, apart from the standard of proof issue, they denied discretion to the colleges.

01:18:53.200 You know, because because I think what she recognized is that if you give colleges lots of choice in this area, they're always going to choose the process that that will minimize due process.

01:19:03.640 So what, you know, you say you have two nephews who are going to go off to college.

01:19:07.560 What what is your advice for young men heading off to college when it comes to sexual encounters?

01:19:15.400 Like, let's get real.

01:19:16.600 What what should they be thinking?

01:19:18.620 In a troubling kind of way, although there are occasional cases that involve allegations from non-students.

01:19:26.160 You know, for the most part, this this is an area as long as the DeVos regulations are there, I think that there is at least some fairness.

01:19:33.260 But if these regulations get repealed and we move back to the Obama Biden approach, it's almost a situation where you have to know going in that any sexual encounter risks the possibility of one of these filings.

01:19:45.880 So it requires extraordinary care, at least if you're going to have any kind of sexual relationship with with a student, because because the whole process is so arbitrary.

01:19:55.540 You can have 100 cases with an identical set of facts, you know, drunk students with a one night hookup.

01:20:02.360 Ninety nine of those cases, the students will move on with their lives with no problem in the 100th case.

01:20:07.940 However, it will it will result in one of these one of these proceedings.

01:20:11.560 So the only way you can basically always avoid these proceedings is to avoid any kind of sexual contact on campus at all.

01:20:18.060 And that's not a realistic approach.

01:20:21.480 And so, you know, the other is to be very careful.

01:20:23.860 And I think, you know, to be very, very careful with with alcohol, because, you know, everyone does things, you know, when when they're drinking that they might not do, you know, when when they're sober.

01:20:37.660 And if you make a mistake here again, we're not assuming that the skill, it's just a mistake that triggers a charge.

01:20:44.180 It can be a life altering event and you can really never get out from under.

01:20:47.660 Hmm. That is terrifying.

01:20:51.320 The whole point of like, you know, not doing anything dumb when you're when you've been drinking.

01:20:58.140 Is because your judgment is impaired, right?

01:20:59.760 Your judgment is impaired.

01:21:00.600 So so but like.

01:21:03.020 Once you've had a couple of beers, your judgment is already impaired.

01:21:05.680 And if you're thinking about at that point, it's too late.

01:21:07.780 So you almost have to decide if I'm drinking tonight, I'm not going to hook up like.

01:21:11.740 But that doesn't seem realistic.

01:21:13.040 I mean, it's been a long time since I was in college, but that doesn't seem realistic.

01:21:16.760 I really think like I want to talk to my fellow women.

01:21:19.980 I want to talk to like young co-eds and say, girls, number one, don't be a hoe.

01:21:25.220 That's number one.

01:21:26.220 That was my rule for myself.

01:21:27.560 It served me very well.

01:21:28.740 Doesn't mean you can't enjoy the college life and hook up where you feel it and want to do it.

01:21:32.680 That's all good.

01:21:33.320 But like be discriminating and and own your own behavior, you know, and that doesn't mean accepting sexual assault or harassment.

01:21:41.820 Absolutely not.

01:21:42.480 It means getting real about your own choices and and whether we're really talking about an assault or harassment situation, because if you claim that when it didn't really happen, you undermine all the women to whom it actually did.

01:21:55.380 Correct. Correct.

01:21:55.880 And that's that's what the the the jilted girlfriend in the Amherst case, I think, recognized that, you know, if if if what occurred in Amherst is defined as sexual assault, the net result of this is that no one will believe victims of sexual assault because the assumption is that that that malevolence can be can be a justified approach for for a victim.

01:22:18.940 And, you know, that's so it's the the the cultural redefinition here is is a really problematic one.

01:22:25.620 Well, I do think, you know, alcohol plays a huge role, especially with the guys, because I saw this myself in the in the college age and like sports teams and so on, the drunker they get, the more inappropriate they get.

01:22:38.120 And they do increase the risk. I wouldn't say it would make a non rapist or rapist in a lot of cases, but there's no question that young men need to take responsibility for their behavior, too.

01:22:48.960 And watch the amount of alcohol they consume and how it changes their inhibitions and understand that physically they're absolutely in the power position when it comes to the young women on campuses.

01:22:58.940 They are. And they have to take responsibility for that and be. Extra careful about it.

01:23:04.880 Right. I think that's that's 100 percent correct.

01:23:08.240 What now? Like what should we be watching Biden do like to to stay up on whether this is going to get undone?

01:23:16.300 He's going to try to change the rules. People can speak up and comment to try to stop that.

01:23:20.760 You said there were over 100000 comments on the DeVos rule changes.

01:23:23.860 What's next for those of us paying attention to this fight?

01:23:26.440 I think there are there are two areas. The first is that only if there's one of these lawsuits that were filed against the DeVos rules by, you know, by a coalition of blue states where the Biden administration in its most recent filing seems to be suggesting that it might try to use this lawsuit to get rid of the regulations.

01:23:44.800 The state of Texas, ironically, is trying to intervene to defend the regulations.

01:23:50.840 And so one question will be whether this lawsuit is is is is a is a vehicle for Biden to basically make a favorable settlement with these blue states and agree to get rid of the regulations.

01:24:02.640 I suspect the court will look unfavorably on that. But but again, we don't know.

01:24:07.700 These filings have been been quite recent. The second is once a full team in the education department has been announced, I suspect what we will see again if this litigation side doesn't work out for them will be an announcement that they are going to issue new rules basically to to replace the DeVos rules.

01:24:25.960 And and and if that occurs, I think it will occur relatively quickly.

01:24:31.620 They would want these new rules to be in place by the start of the academic year.

01:24:36.560 So I would be looking for something in the next month or or two because colleges for you don't want to change their regulation, their procedures in the middle of the year.

01:24:44.840 So, you know, within the next few months, I think we should have a pretty clear sense of what Biden is intending to do.

01:24:50.800 And I suspect what we will hear from from them will be regulations that basically just return to the 2011 era and pretend that all of these court cases don't don't exist.

01:25:01.920 And that's a risky approach for Biden, because I would assume there will be legal challenges.

01:25:06.940 But I think we'll see action pretty quickly.

01:25:09.900 I love the point you made, though. That's I think it's great. You want to go back to 2011, 2014 standard?

01:25:15.240 Let's do it. And let's apply the exact same standards to you and not just Tara Reid's allegations against you, but all the women.

01:25:21.540 Let's just see whether the unwanted touching you unleashed on several young women on tape would pass muster under these standards and in these courts that you're about to bless.

01:25:31.900 Let's do it. And everyone goes down or up together.

01:25:35.060 I mean, he doesn't he wouldn't. It infuriates me, but he but he's going to allow the lives of young men, you know, like the ones we've been talking about.

01:25:43.320 They're not all innocent. We all know that to be ruined based on what based on accusations in some instances from people who never should have had a day in court.

01:25:52.980 Casey Johnson, I have to tell you, I really appreciate all the work and study you've been doing on this for years and years and years and come back.

01:26:01.040 OK, let's keep an eye on it.

01:26:02.060 Thank you very much.

01:26:05.060 Thanks for listening to The Megyn Kelly Show.

01:26:32.120 The Megyn Kelly Show is a Devil May Care media production in collaboration with Red Seat Ventures.

The Megyn Kelly Show - February 08, 2021

Biden Brings Back ＂Believe All Women＂ - KC Johnson on Key Title IX Cases on College Campuses ｜ Ep. 61

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