What Ezra Klein Gets Wrong about the ‘Yes Means Yes’ Law in California

By October 17, 2014

On Monday, Vox co-founder Ezra Klein penned an op-ed about how he firmly supported the affirmative consent bill recently passed in California despite his candid acknowledgment that the bill was in fact “terrible.” The general tenor of his column, which I discussed in The Daily Caller yesterday, was that you can’t make an omelet without breaking a few eggs—the eggs being people unjustly found guilty of rape. Critics on the left and the right were equally appalled, as well they—or anyone concerned with civil liberties—should have been.

Under this barrage of well-deserved criticism, Klein returned with a longer piece yesterday, attempting to justify his candid-yet-horrifying position on California’s law. He fails. In fact, despite his column’s title, “What people get wrong about the Yes Means Yes law,” he fails to even get basic facts about the law right. Klein does the same thing that so many other supporters of the law have done, which is to present the law and the campus environment in inaccurate ways that just happen to make due process abuses seem less grievous. So allow me to present a mini-Fisking of the article, and you can be the judge of who’s right. I won’t address every line of Klein’s long, doomed attempt at self-justification, but I will hit the highlights (or perhaps lowlights). There are plenty of them.

Klein opens thusly:

When I first looked at California’s Yes Means Yes law, I thought it was ridiculous. The law redefines consent such that the everyday actions of loving couples would technically be unprosecuted assault. Meanwhile it did nothing to resolve the core problem in college sexual assault cases: one party says there was consent, the other party says there wasn’t, and there’s no clear way to settle the dispute.

This is a decent summation of the main problems with the law. These are problems so severe that they should rightfully have led to the law’s defeat. Indeed, Klein’s first impression was correct, and his analysis of the law could have stopped there.

My intention, initially, was to write a column ripping into it.

Yes, that would have been a good idea. After all, if you have deemed “the everyday actions of loving couples” to be not just illegal but assault, your law is irretrievably defective. But wait: On second thought, Klein’s going to try to retrieve it anyway.

So I’m sympathetic to the case against Yes Means Yes. But as I read more about the bill, talked to more lawyers about it, talked to more of the women in my life about it, and particularly after I read Amanda Taub’s piece outlining the broader benefits for an affirmative consent culture, I changed my mind. In part, I initially misunderstood what the Yes Means Yes law does, and doesn’t, do. But I also approached the law with too much status quo bias. It was too easy for me to see the disruptions and dangers embedded in the change and too hard for me to see the rolling catastrophe of the status quo.

Actually, Klein did not misunderstand what the law does, as discussed above. But here you see the key reason he supports it anyway: He firmly (and presumably sincerely) believes that there should be a cultural shift on how sex takes place on campus and maybe even in the larger society. And calling for a cultural shift is fine; indeed, there are plenty of other folks who have ideas how the culture on campus should be. But a core difference between them and supporters of the California law like Klein is that the latter are comfortable with enforcing their desired culture shift not just through the power of the state but by using that power to degrade the rights of the accused. As blogger Fredrik deBoer put it: “As long as we’re making an omelet, am I right?”

Klein and others need to have some awareness that this is not simply a tweaking of the concept of consent; it’s another battle in America’s seemingly unending culture war. That’s why the debate around California’s law has gotten so ugly so quickly.

Not being a statistician, I am going to skip Klein’s opinion about the validity of the “one in five” statistic that supposedly justifies the affirmative consent law and other efforts to reduce due process on campus. However, as FIRE has pointed out many times, if 20 percent of women are being raped on campus, that’s a situation so horrendous that it practically warrants calling in the National Guard. In the face of numbers like that, passing an “affirmative consent” law that even its advocates—right on Vox!—say will rarely be enforced is a shamefully inadequate response to what Klein believes is a “terrible problem,” a problem so terrible that punishing the innocent is apparently a necessary price to pay.

FIRE’s main concern, of course, is due process, which Klein addresses under the heading “Yes Means Yes and due process.” He begins:

The idea of “due process” kept coming up in replies.

Fancy that.

Jonathan Chait, for instance, worries that colleges are “trampling due process,” and links to this Judith Shulevitz piece, which isn’t about the Yes Means Yes law. One charming e-mailer wrote, “No due process? Really? I’m a lawyer and now you’re on my hit list.” This is either a deep misunderstanding of the Yes Means Yes law, of how colleges enforce their rules, or both.

Is it? Do tell.

The Yes Means Yes law just doesn’t have much to do with procedural due process. Due process guarantees certain rights around most legal proceedings, like the right to a public trial and an impartial jury. But the Yes Means Yes law isn’t about legal proceedings. It’s about college hearings. It doesn’t change criminal proceedings at all.

Klein’s flip reminder that college tribunals are not “legal proceedings” is a glib way of patting concerned citizens on the head and telling us we shouldn’t care if colleges have set up kangaroo courts. Due process is the normative idea that a disciplinary system must work fairly, consistently, and impartially to arrive at just results. It’s not confined solely to the legal sphere—at least, it shouldn’t be, if we as a society care about fundamental fairness and prefer justice to arbitrary and capricious decision-making.

As the Supreme Court wrote in Goss v. Lopez, a case about high school students in Ohio who had been suspended for up to 10 days with virtually no due process,

the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. 419 U.S. 565, 576 (1975).

Expulsion from a public college and a finding that a person committed sexual assault is surely a much more “serious event” than a sub-10-day suspension from high school and implicates the “liberty interest in reputation” exponentially more than a high school suspension. Here’s a thought experiment that may illuminate the issue: If Ezra Klein were deemed a rapist by his college and expelled from school with that on his transcript, would he have been been hired and paid to blog by The Washington Post, become famous doing so, drawn profiles in major magazines complete with photo shoots, and used that fame to springboard himself to co-founder of a well-known website? To ask that question is to answer it, but I see no sign that Klein has asked.

Further, we really need to dispense with the idea that college tribunals are not miniature justice systems, even if they’re not courts of law. Generally speaking, they involve an allegation, an investigation, a hearing, the presentation of evidence (however defined), fact-finding, the possibility of a sentence that can change the course of the accused’s life (in severe ways), and an appeals process. And when the allegations concern sexual assault, college tribunals just happen to be deciding whether someone committed conduct that constitutes a felony crime. Due process is most certainly a legitimate concern.

Klein continues:

The issue here goes far beyond Yes Means Yes, and into a harder question: what process should colleges uses for sexual harassment hearings? College hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do. This is, for the record, something the courts have looked at: there were some very basic due process protections laid down in Goss v. Lopez, but, since then, courts have judged whether a student’s rights were violated on a case-by-case basis, and they have notably refused to say that all universities, or even all public universities, need to give students the full due process rights that the criminal or civil systems offer. This is why, for instance, students aren’t guaranteed legal representation in plagiarism hearings.

Klein is unwittingly making the case against colleges handling felony crimes like rape here. College disciplinary systems came into being precisely to handle academic infractions like plagiarism or cheating. Indeed, they are exactly the right institutions to handle those kinds of allegations, as they have the specialized expertise. The dynamics are also very different. As the Supreme Court wrote in Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 90 (1978), “[D]isciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context.”

When it comes to rape, however, college tribunals are terrifyingly out of their depth and have displayed what can only be called “anti-expertise.” The Wall Street Journal’s James Taranto recounted an example of how this worked in one case at Auburn University. Actual kangaroos could not have done a worse job of adjudicating that case.

But Klein seems to think that the law will help that process rather than hurt it:

There’s a related, and serious, concern here that the process by which colleges manage sexual assault cases is a mess. In many cases, the accused lack very basic protections (the Harvard Law School’s faculty just published an open letter condemning Harvard’s new sexual assault policies on these grounds). The Yes Means Yes law interacts with these processes a bit, but mostly by telling colleges to clarify them, which will, in many cases, be an improvement.

It will? California’s law effectively places the onus on the accused to prove to a college panel or a single administrator that they received continuous consent to any and every sexual act in question. If a student can’t produce that proof, he or she is a rapist. It doesn’t matter whether the accuser did want the sexual act to happen, it only matters whether the accused can convince the school that they indicated as much. If he or she can’t, they’re a rapist. It’s hard to see how this can be described as fair, even if the procedures are scrupulously followed.

What it doesn’t do is somehow rip rights away from the accused. You could have a hearing process that is very similar to the process used in civil trials within the context of the Yes Means Yes law, complete with guaranteed legal representation.

You could, but you don’t, and Klein knows it. Worse, the affirmative consent bill he supports could have fixed that problem, but it didn’t. For instance, students are nearly always denied competent representation, except in North Carolina, and that exception is in large part due to FIRE’s advocacy. Judge Henry Friendly, in a famous (among lawyers) 1975 article, laid out the basics of what it means to have a fair process when it comes to government hearings. They are:

  • An unbiased tribunal.
  • Notice of the proposed action and the grounds asserted for it.
  • Opportunity to present reasons why the proposed action should not be taken.
  • The right to present evidence, including the right to call witnesses.
  • The right to know opposing evidence.
  • The right to cross-examine adverse witnesses.
  • A decision based exclusively on the evidence presented.
  • Opportunity to be represented by counsel.
  • Requirement that the tribunal prepare a record of the evidence presented.
  • Requirement that the tribunal prepare written findings of fact and reasons for its decision.

FIRE has seen colleges violate every one of these principles, and often many of them at once, in our 15 years of handling due process cases. The Harvard Law faculty members are concerned about these as well. This is not a fringe concern or one to be easily dismissed.

There’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there’s no reason one shouldn’t support all simultaneously, as I do.

A somewhat separate issues that the Yes Means Yes law also directs California colleges to use the “preponderance of evidence” standard, which is what’s used in most civil trials. But that’s not much of a change: the federal government has directed colleges to use that standard back in 2011, though not all of them have complied.

The preponderance of evidence standard is a lower standard than is used in criminal trials. But as the federal government argued in 2011, it’s the standard that the Supreme Court laid down for civil discrimination suits under the Civil Rights Act, and it’s the standard the Office of Civil Rights uses when looking into Title IX violations.

It’s hard to imagine that there are “real protections for the accused” when the law Klein’s supporting not only requires that you be able to prove you had consent at every stage of sexual activity or at some undefined interval, but also lowers the burden of proof so that a tribunal only 51 percent certain of your guilt has to find you guilty of rape anyway.

Of course, FIRE has been over the problems with the preponderance standard ad nauseum. I will spare you the relitigation of this issue, but please read our May 2011 letter to the Department of Education for FIRE’s take on the problems with this, and you can decide who’s right.

The reason the criminal standard is so tough to meet is that people go to jail in criminal trials, they get the death penalty in them, they become registered sex offenders through them. The worst a college can do is expel you.

Yes, they can expel you, deny you further education at any other state institution (in some cases, like Caleb Warner’s), and make sure your transcript and your records, which are accessible to schools, employers, and the government, say that you’re a rapist. And I assure you that those notifications do not elaborate on the many due process failures of the university in making those findings.

That’s why colleges have never had to meet the criminal standard when deciding whether to expel a student for plagiarism or vandalism — and yet people don’t seem overly exercised about those verdicts. Why is sexual assault different, given that the punishment is the same?

Is this question serious? It’s because you have been found guilty of rape, not plagiarism or vandalism! If the punishment for murder were reduced to one year in prison, people would still treat murderers worse than vandals who got a year in prison, even though the punishments are the same. Come on.

Are you sure you want make it impossible for colleges to expel potential rapists where the preponderance of evidence shows them to be responsible for repeated sexual assaults, but it can’t quite be proven beyond a reasonable doubt? That’s not a standard, for instance, that we think employers should meet.

First, colleges aren’t students’ employers. Students pay them, not vice versa. So this is a bogus equivalency. But expulsion is not the panacea so many advocates make it out to be. The best case scenario is that the expelled rapist is free to victimize people (generally, women) off campus. And on many campuses, there’s nothing preventing those expelled from coming back onto campus long enough to victimize students again—it’s not like they’re wearing a tracking ankle bracelet or being shadowed 24/7 by campus cops.

That’s why colleges should be leaving matters of public safety and criminal justice to the criminal justice system, which actually has the power to get rapists off the streets. Colleges can provide plenty of services, from counseling to escorts to accommodations in scheduling or living, to help rape victims. But they can’t put the rapist in jail. If there’s a problem with the criminal justice system’s ability to achieve justice in rape cases, then that’s the system that needs reforming by legislators, not the campus justice system.

Thankfully, Klein does seem to have a vague sense that this is a problem:

The most serious argument around due process here isn’t about the Yes Means Yes law at all; it’s that colleges aren’t an appropriate venue for sexual harassment cases. Unlike in criminal trials, colleges can’t subpoena records, and they often allow forms of evidence actual courts would dismiss. “Those accused in campus tribunals are generally denied these protections — but nevertheless are subject to life-changing sanctions, based on little more than a hunch by campus court participants that one person’s story is slightly more credible,” Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education, told CNN.

It’s hard to go wrong quoting FIRE.

More broadly, colleges are in an odd position: they both have to manage the investigation and the trial, while the legal system has clearer separation between these functions.

And why do you think the legal system has this separation? Because the history of systems where those functions aren’t separated is unrelentingly grim. It’s why the prosecutors in our system don’t talk to judges about their cases without the other parties around. That’s not a quirk of history. That’s because painful experience shows that a system for determining whether someone committed a crime that lacks an independent judge and fact-finder is an invitation for injustice.

But this, again, leaves us in an odd place. Colleges can expel students for sexual assault, much as they can for plagiarism, or fighting, or vandalism, or repeatedly hotboxing their dorm room. No one is saying that those infractions should be solely the province of the legal system. The question then becomes, why should colleges be able to punish all these activities with expulsion, but not sexual assault? What’s the argument for letting colleges punish fights but telling them they can’t punish rapes?

Institutions should be free to make determinations when they are competent to do so and should refrain from doing things that are outside of their competence. Despite the implications from Klein’s first article, no one benefits from a falsely accused person’s expulsion. There’s a nearly endless supply of public accounts of campus judiciaries botching campus tribunals and badly violating our expectations of fundamental fairness to both student complainants and accused students.

You would be hard pressed to find anyone who thinks they are doing it well, and that shouldn’t be a surprise. The dean of the English department, an associate professor of physics, and a sophomore majoring in anthropology are perfectly capable of serving on a jury in a real court where professional lawyers present cases and question witnesses while independent judges make rulings. But without that apparatus, they utterly lack the experience and expertise that law enforcement professionals and actual courts possess that help them reach reliable findings. Campus tribunals also often lack access to or understanding of forensic evidence, have no ability to subpoena witnesses, can never put witnesses under oath, and are devoid of rules of evidence that exclude hearsay and a great deal of other irrelevant information. In a situation as complicated and weighty as a rape accusation, this is a prescription for one failure after another, and that’s what we’re getting.

As for expelling students for plagiarism, or fighting, or vandalism, or repeatedly hotboxing their dorm room, the reason those are so different from sexual assault cases is that those cases have been far less politicized and subject to activism. There is no army of advocates who will argue that false accusations of fighting, vandalism, or hotboxing dorm rooms is rare, and thus complainants deserve to be believed. Nor is there a federal agency telling institutions they must lower their standards of evidence in such cases or risk being stripped of federal funds (a death sentence for most colleges, since the funds include student aid like Pell grants and Stafford loans).

Now we come to the most irritating section: “No, of course innocent people shouldn’t be convicted of sexual assault.”

Jon Chait writes that I am “arguing for false convictions as a conscious strategy in order to strike fear into the innocent.” That is, seriously, among the most insane things I’ve ever seen someone read into my writing.

I guess I am insane, too. I am pretty sure Klein said, “men need to feel a cold spike of fear when they begin a sexual encounter,” and that “cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations” are “necessary for the law’s success.”

But I think I understand where Chait got that, so let me try and explain this more carefully.

I think I know where he got it, too. This should be fun.

In the part of my piece Chait quotes, I say that for a consent culture to be established, college boards will have to “convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations,” and that the stories of those convictions, which will often feel deeply unfair to accused and even sound unjust when described by the accused, will have to become broadly known to parents and college students. But I think Chait and I have very different definitions of ambiguous.

Here, Klein presents a hypothetical situation, the nut of which is this:

Imagine a party where the man and the woman go home together, and they’re both pretty drunk. They’re making out, and the man wants to go further. She says, “I’m not sure I want to do that,” but she doesn’t quite say no. He’s persistent, though. Not forceful, but persistent. Five minutes later he tries again. Again, she says something that’s not quite “stop!”, or maybe she says nothing and simply moves his hand away. And five minutes after that, he tries yet again. Eventually, she shuts downs somewhat, lets him do what he wants. What happened here?

Klein’s answer is that colleges should declare this person a rapist and expel him. And it leads him up to what is by far the most deceptive and objectionable part of his column:

But the point of affirmative consent laws is to deal with this situation: to make certain that a “yes” is actually offered somewhere along the way. This isn’t, by any means, a call for convicting innocent people; it’s a call to recognize that ambiguity isn’t the same as innocence, even if the aggressor didn’t think they were assaulting anyone. It’s a call, in other words, for an affirmative consent standard.

The bolding is mine, and I bolded it because what Klein is saying is manifestly not what the California law actually says. A yes does not have to be offered “somewhere along the way”; it has to be continuous. As FIRE’s Susan Kruth pointed out a few days ago, the advocacy group UltraViolet’s video showing how affirmative consent should work depicted students trying to ask for consent at every stage of sexual interaction, such as when a male stops mid-kiss to ask a female student if it’s okay for him to touch her clothed hip. Getting a “yes” “somewhere along the way” isn’t enough. If students only follow Ezra Klein’s advice here, they’re violating the affirmative consent standard as it is codified in law. (Ironically, so were the students in the UltraViolet video. Apparently, making a video depicting this standard is so difficult that even its boosters can’t manage it.)

The rest of Klein’s piece is about what he perceives to be desperately needed cultural changes in how men and women interact when it comes to sex. FIRE doesn’t have any opinion on that. But we do have an opinion on whether or not colleges should jettison due process and fundamental fairness in hope that those sacrifices will prompt a broader cultural shift.

Our answer is “no.”

Schools: University of North Dakota Auburn University Cases: California: Affirmative Consent Bill Threatens Student Due Process University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case