Wednesday, October 7, 2015

My C-J Column on Title IX Kangaroo Courts

Reprinted with permission from the Courier-Journal

Colleges must be terrifying places these days, with the supposed explosion of rape on campuses. Why would any parent pay $60,000 a year for private tuition if there truly is a “rape culture” on college campuses?
Also frightening:  the response to this rape “epidemic” has led to an increasing number of students who are falsely accused of sexual assault and subjected to Star Chamber prosecutions on campus.
Typically the accuser is a young woman and the accused is a young man, but not always.
Some friends shared with me their daughter’s experience of such a situation at an elite college in another part of the country. Their daughter was accused by a former friend of sexual assault. The accuser complained to the college.
What happened next requires some background on an Obama administration initiative against campus sexual assault; that culminated in Title IX policy from the obscure Office of Civil Rights (“OCR”) in the Department of Education.
Title IX, enacted in 1972, prohibits sex discrimination in educational institutions that receive any federal funds (nearly all colleges and universities). It’s the statute that led to increased opportunities for women to play sports and receive athletic scholarships.
In 2011, OCR announced in a Dear Colleague Letter that Title IX applies to sexual assault and that schools that are not proactive enough in addressing sexual assault will be punished. To avoid the risk of losing federal funds, schools responded by instituting pseudo-judicial tribunals to address sexual assault accusations.
My friends’ daughter was hauled in front of one of these campus kangaroo courts. She was fortunate: her parents understood that she needed a lawyer. And they could afford to hire one to represent her in this burgeoning area of law — defending students accused of sexual assault not in court, but in Title IX proceedings. However, because the rules of the campus hearing did not permit her to have a lawyer present, her lawyer could only accompany her as an “adviser.”  That is, he had no right to make objections or cross-examine witnesses.
As a group of 28 Harvard Law professors noted, Harvard’s proposed procedures for conducting Title IX investigations and hearings lack the most basic elements of fundamental fairness and due process. The procedures stack the deck against the accused.
That’s exactly what OCR wants. For example, OCR requires the standard of proof to be the much easier to prove “preponderance of evidence” (50.01 percent) rather than “beyond a reasonable doubt” (99.9 percent). Typically there are no sworn statements or subpoenas, no rules of evidence. No right to an attorney or right against self-incrimination.
Fortunately, witnesses — other than the accuser — were truthful and my friends’ daughter was exonerated. She was not expelled or labeled a sex offender. She graduated on time notwithstanding the distraction and stress of the false accusation. Her parents will be paying off that legal bill for years but consider it money well spent. The college, meanwhile, with a hubris only the Academy could muster, continues to ask this family to donate to it.
Sexual assault, when it really occurs, is a crime. It should be investigated by professional law enforcement, not campus police. It should be prosecuted by actual prosecutors —not college administrators. Expulsion from college is not a sufficient punishment for rape:  jail is. To the contrary, merely expelling a true perpetrator just sets him free to rape non-students.
However, boorish behavior should not be equated with sexual assault. By failing to make that distinction, Syracuse University’s recent decision to ban the “kiss cam” from the Carrier Dome trivializes the seriousness of rape and non-consensual sex.
The recent AAU survey used to quantify the so-called “epidemic” of rape is problematic not just because only 19.3 percent responded to the survey. It defined “Sexual assault” and “sexual misconduct” so broadly that it included “remarks about physical appearance.”  That may be sexual harassment; it’s not sexual assault.
Likewise, spontaneous inebriated sex does not necessarily constitute sexual assault. It depends on the facts and circumstances; it is too nuanced for college  tribunals to adequately address, while trying to prevent an OCR shakedown.
As Glenn Reynolds has written, the supposed explosion in rape and sexual assault on campus is media hype of a phony crisis to justify federal intervention. The rate of rape and sexual assault, like violent crimes generally, has plummeted. And it’s lower for college students (6.1 per 1,000) than non-students (7.6 per 1,000).
Sexual assault is wrong, pure and simple. So is leveling a false accusation.
Colleges should take steps to protect students from crime, including sexual assault, and provide resources to victims. We expect colleges to take reasonable measures to keep their students — our children — safe. Not just from rape, but from false accusations of sexual assault.

Tuesday, September 29, 2015

Comer to Run For Whitfield's Seat

Republican Congressman Ed Whitfield announced earlier today that he is retiring from the Congressional seat he has occupied since 1995.  Agriculture Commissioner Jamie Comer is said to be announcing his candidacy tomorrow for Kentucky's First Congressional District.

Comer fell 83 votes short of becoming the Republican nominee for governor earlier this year.

Why Did RGA Go Dark on Bevin?

I freely admit I did not see coming the Republican Governors' Association's decision to stop running ads on behalf of Matt Bevin.

My sense is that the race is tight, so I don't think the RGA has abandoned him as a lost cause. Rather, I think that Bevin's fundraising numbers must be bad.

RGA has the money, and almost no other races this year. But the national party organizations like to see the candidate raising his or her own funds rather than waiting for the national money to pour in. The RGA money is sort of like a matched donation in that sense.

Bevin made a big point at the GLI lunch that he would not be beholden to anyone. This rugged independence may be why he hasn't been very aggressive on the fundraising front.

For example, Bevin did not reach out to the big donors one would expect to get a call the day after the primary election until an inexplicable amount of time had passed. There have been a spate of fundraisers for him recently, but it is rather late to be just now asking for contributions.

Jack Conway is in many respects the complete opposite. All he does is fundraise. It's a way to make the campaign look like it's doing stuff without actually mixing with the great unwashed. Apparently Conway doesn't even like to mix with the big donors; at a recent fundraiser, Conway had to  be prodded to get up and work the room of major donors. Not a people person, that Conway.

Bevin has the luxury of being able to self-fund. Not only is the guy rich, the vast majority of his personal fortune is said to be liquid. He needs to write his campaign a big check, stat. Then I would expect the RGA to go back on the air.

Monday, September 28, 2015

Make Obama Use His Veto Pen

Senate Majority Leader Mitch McConnell does not have the votes to achieve much. As a result the base is angry and frustrated -- directly leading to the rise of Donald Trump.  Talk radio, in particular Hugh Hewitt, are pressuring McConnell to use the "nuclear option" to get rid of the filibuster. That would allow Republicans to pass legislation with a bare majority, rather than the 60 vote super-majority now required to end a filibuster with a cloture vote.

McConnell wisely resits the pressure to nuke the filibuster because he recognizes that it has protected conservative principles by allowing Republicans to block terrible legislation, such as union card check. McConnell's concerns are well-placed, given that Republicans have only had more than 55 votes in the Senate once in the last century.  If history is any guide, Republicans will need the protection of filibuster. Republicans should take the long view on this issue.

McConnell is also correctly concerned about the Senate as an institution. As George Washington explained, the Senate is tea saucer that cools and slows down the hot water sloshing out of the tea cup:  the House of Representatives. Does the filibuster slow things down?  Yes; it's supposed to.

But the anger among Republicans is real; it is wide as well as deep. McConnell needs to acknowledge that fact and modulate accordingly.

I'm no expert on Senate procedure. However, it seems to me that Republicans can use the reconciliation process -- which only requires 51 votes -- to send a bill to Obama that keeps the government from shutting down. Attach to that a rider that defunds Planned Parenthood. By using the reconciliation process, there is no filibuster.  Therefore, there is no need for a cloture vote to end a filibuster. Likewise, there is no need to nuke the filibuster to get around Republicans not having 60 votes.

Recall that the reconciliation process was what Democrats used to enact Obamacare.

To be sure, Obama would veto a bill with a rider that defunds Planned Parenthood. He has said so, and in this instance, I take him at his word. Make him veto it anyhow.  If the government shuts down as a result, it will be on his watch.

The Planned Parenthood videos are horrific. Desperate measures are called for as a response. Making Obama veto a bill is a start.

Friday, September 25, 2015

McConnell Reacts to Boehner's Resignation

Senate Majority Leader Mitch McConnell made the following statement on the Senate floor regarding the resignation of John Boehner:

"Grace under pressure.

“Country and institution before self.

“These are the first things that come to mind when I think of John Boehner.

“He is an ally. He is a friend. And he took over as Republican Leader at a difficult time for his party.

“When some said Republicans could never recover, he never gave up.

“When some gave in to defeatism, he kept up the fight.

“Because he did, Speaker Boehner was able to transform a broken and dispirited Republican minority into the largest Republican majority since the 1920s.

“That’s a legacy few can match.

“He flew across the country more times than he can count to support members of his conference, and to recruit new members to the cause. As leader of a new majority, he turned the tide in Congress and brought conservative reform in many areas. He worked tirelessly to provide hope to those who dreamed of a better life and to middle-class families who struggled under the weight of this Administration. 

“John knows what it’s like to struggle and to dream of something better. He’s lived it.

“That a young man from Reading, Ohio wielding a bar towel could one day wield the gavel of the U.S. House of Representatives — it reminds us of the continuing promise of this country.

“I know yesterday was an incredibly important event for the Speaker. It was his aim to bring the same spirit of grace that has always guided his life, to others. You only had to look out onto the Capitol lawn to see what he achieved. And that he chose this moment to make this decision, means he will be leaving us in a similar spirit.

“I know we’ll all have more to say in the weeks to come. But for now, thank you, my friend.”

Thursday, September 24, 2015

Warming Up to Matt Bevin

I went to a fundraiser for Matt Bevin last night and it has caused me to rethink my opinion of him:  I was very impressed by how thoughtful and substantive his answers were to a wide range of topics. It's no secret that the guy is very bright. What I had not previously noticed, however, is how creative he is with respect to coming up with solutions to solve problems. That's an attribute that we could use more of in our elected leaders.

But what really impressed me was his temperament.  This fundraiser was held at a club, and a member who may have been overserved wandered in from the bar during the event. This person asked an aggressive question about the horse industry, to which Matt politely responded. His response was not satisfactory to the questioner, who kept interrupting him, not with questions at this point, but to argue -- even getting profane. Matt was relentlessly polite and displayed no anger whatsoever. And he kept trying to address the substance of the topic all the while being yelled at and interrupted -- at his own fundraiser.

This contrasts the narrative that local political reporters have been pushing about Matt's temper and temperament. 

A couple other things stood out from the evening.

 I was joking with Matt about Sweaty Jack Conway's debate performance under the heat of the television lights. Matt informed that Conway was sweating profusely back stage, even before they went under the stage lights. He said that Conway appeared to be extremely nervous while awaiting for the debate to start.

How odd for someone who has served two terms as attorney general and run for Congress and U.S. Senate to be so nervous about a debate; he has more debate and campaign experience than Matt and Drew Curtis combined. It reinforces my theory that Conway does not really want to be governor; he is running out of a sense of entitled noblesse oblige.

I asked Matt to about his comment that he would appoint qualified people regardless of their party affiliation; I told him this bothered me as a conservative -- that I didn't see how he could govern as a conservative if he appointed people who do not espouse conservative principles.  

Matt clarified that he would appoint qualified conservatives regardless of party affiliation. He made the point that there are still many Kentuckians who are Democrats by registration as a historical accident rather than a reflection of ideology. Someone who agrees with him ideologically -- and has the requisite expertise for a given position -- might still be a good selection notwithstanding party registration. And he indicated that in the vast majority of instances, he would likely appoint a Republican. I thought it was a good answer and it eased my doubts on the point.

Finally, I have to credit Matt with how much he as improved as a candidate. That reflects a discipline and willingness to learn, and speaks well to his ability to govern.

This race is tight. Republicans, conservative Democrats and independents who want Kentucky to be its best need to get behind Matt Bevin now.  

Tuesday, September 22, 2015


Six months ago, I would never have guessed that his presidential campaign would burn out so quickly.

I met Scott Walker at a Federalist Society event a few years ago.  He gave a good, substantive speech that highlighted the reforms he has enacted in Wisconsin. I was particularly impressed with his record on battling the teachers' unions, which in my view, have done more to harm education in this country than almost anything.

I was also impressed with his ability to survive the relentless attacks and recall elections the Dems kept throwing him -- particularly in a purple state.

In light of Walker's record --both in policy and politically -- I thought he merited a serious look as a presidential nominee.

And yet he never caught on. This is just not his time. That he realized this so quickly is to his credit and reflects his political acumen.

Wednesday, September 16, 2015

Happy Hour Debate

Gov. Bobby Jindal is on fire.  Can't believe this is the same guy who froze during his State of the Union rebuttal when he was first elected.  I loved the point that his criticism of Trump did not violate Reagan's 11th Commandment -- because that only applies to Republicans!

This is quickly turning into a two person debate between Jindal and Rick Santorum.


Kim Davis is now an item in the debate.  George Pataki seems to be the only one to understand that she was an elected official who took an oath to uphold the law.  He would have fired her.

Kim Davis does not bake wedding cakes.  She is not a member of the private sector.  Totally different issue.


Jindal is right.  Stop appointing judges with blank slates as records.  Pick conservatives with known track records who are willing to go on the record rather than hide what they believe.

Glad Fisher Didn't Take a Selfie!

Louisville Mayor Greg Fisher's potty tweet is now a national story. The Huffington Post has the original photo, plainly taken while Fisher or one of his minions was sitting on the toilet.  The tweets he got in reply are classic.

Yes, Kentucky has been getting all kinds of publicity lately.

I guess this is Fisher leading from behind.

Jack Conway is Delusional

Jack Conway sent the following email last night:  "I just left the stage. . . . I feel great because we clearly came out on top."

Were we at the same debate?

Aside from sweating more than Richard Nixon, he performed abysmally.  Speech and debate teams should study the video as an example of what not to do.

Even the unknown independent, Drew Curtis, beat him.

For Conway to send an email blast touting how well he did is just unhinged.

Jack Conway has the stench of defeat.