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Amor Mundi: Fairness and Title IX

Fairness and Title IX

Elizabeth Bartholet, Nancy Gertner, Janet Halley and Jeannie Suk Gersen have written “FAIRNESS FOR ALL STUDENTS UNDER TITLE IX,” a call for a rethinking of the Federal Title IX policies around sexual misconduct.

“We are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. We were four of the signatories to the statement of twenty eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”

We welcome the current opportunity to assess the response to campus sexual harassment, including sexual assault. In the past six years, under pressure from the previous Administration, many colleges and universities all over the country have put in place new rules defining sexual misconduct and new procedures for enforcing them. While the Administration’s goals were to provide better protections for women, and address the neglect that prevailed before this shift, the new policies and procedures have created problems of their own, many of them attributable to directives coming from the Department of Education’s Office for Civil Rights (OCR). Most of these problems involve unfairness to the accused; some involve unfairness to both accuser and accused; and some are unfair to victims. OCR has an obligation to address the unfairness that has resulted from its previous actions and the related college and university responses.

In 2011, OCR issued a “Dear Colleague Letter” which gave colleges and universities instructions on how to regulate this area. That document was never opened for notice and comment and as a result does not itself have the force of law and could not add new obligations for regulated parties. Nevertheless the previous Administration’s OCR threatened colleges and universities with the institution-wide cutoff of all federal funding if they did not comply with the Dear Colleague Letter’s instructions, including ones that had never before been considered legally required by Title IX. Terrified, administrators not only complied; they over-complied. Below is a list of some of the most severe problems left in the wake of this overcorrection.

Definitions of sexual wrongdoing on college campuses are now seriously overbroad. They go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment. They often include sexual conduct that is merely unwelcome, even if it does not create a hostile environment, even if the person accused had no way of knowing it was unwanted, and even if the accuser’s sense that it was unwelcome arose after the encounter. The definitions often include mere speech about sexual matters. They therefore allow students who find class discussion of sexuality offensive to accuse instructors of sexual harassment. They are so broad as to put students engaged in behavior that is overwhelmingly common in the context of romantic relationships to be accused of sexual misconduct. Overbroad definitions of sexual wrongdoing are unfair to all parties, and squander the legitimacy of the system.

Though OCR did not require schools to treat accused students unfairly in the investigation and adjudication process, its tactics put pressure on them to stack the system so as to favor alleged victims over those they accuse. The procedures for enforcing these definitions are frequently so unfair as to be truly shocking. Some colleges and universities fail even to give students the complaint against them, or notice of the factual basis of charges, the evidence gathered, or the identities of witnesses. Some schools fail to provide hearings or to allow the accused student’s lawyer to attend or speak at hearings. Some bar the accused from putting questions to the accuser or witnesses, even through intermediaries. Some schools hold hearings in which the accuser participates while remaining unseen behind a partition. Some schools deny parties the right to see the investigative report or get copies for their lawyers for preparing an appeal. Some schools allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.”

The Jamestown Genocide?

Aoife O’Donoghue and Henry Jones respond to the peer-reviewed publication in the Journal of the History of International Law of an essay arguing that the Native American Powhatan tribe committed genocide when it wiped out European settlers in the 1622 Jamestown Massacre.

“Over recent years there have been significant advances in scholarship on the history of international law. Critical histories, including feminist, Marxist and most productively Third World perspectives, shed fresh light on the history of the discipline and its political frame illuminating contemporary international law in important ways. Amongst the small pond of critical international lawyers, the question of historical methodology, and how to use history as a lawyer is the subject of intense debate, particularly the attendant methodological anxieties inherent to challenging dominant narratives. The Journal of the History of International Law is a key arena where this re-examination of the history of the discipline occurs.

The Journal’s mission statement reads as follows:

The Journal of the History of International Law / Revue d’histoire du droit international encourages critical reflection on the classical grand narrative of international law as the purveyor of peace and civilization to the whole world. It specifically invites articles on extra-European experiences and forms of legal relations between autonomous communities which were discontinued as a result of domination and colonization by European Powers. It is open to all possibilities of telling the history of international law, while respecting the necessary rigour in the use of records and sources. It is a forum for a plurality of visions of the history of international law, but also for debate on such plurality itself, on the methods, topics, and usages, as well as the bounds and dead-ends of this discipline. Moreover, it devotes space to examining in greater depth specific themes.

The lead article in Volume 19(1) is entitled “The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention“. The author, John T Bennett is a veteran, practicing attorney and an occasional contributor to the American Thinker, a blog that can be characterised as “alt-right”. Bennett’s blogs are largely concerned with immigration and the loss of American identity while other posts on the site attack triggered snowflakes on American campuses who support the Stalinist antifa. This is, to say the least, a surprising voice to hear in a journal dedicated to challenging the grand narrative of international law. Unavoidably we bring our own views to the process of turning knowing into telling, in turning data about the past into history. The best we can hope for is to acknowledge these things and aim for methodological rigour as an antidote to potential polemic.

Conservative voices are present in the turn to history in international law, generally insisting on a strict contextualist approach abhorring any use of the past to tell us something about the present as anachronistic. Both contextualist and more radical approaches to history challenge the grand narrative but admittedly neither impact greatly beyond academia. Bennett’s article is of a different type. His self-declared “heterodox” approach fully reveals itself in the final paragraph when he denounces “anti-white, anti-English” interpretations of history. It is from this viewpoint he seeks to argue that the Native American Powhatan’s responsible for the 1622 Jamestown Massacre committed genocide.

It is difficult to respond to Bennett’s article because in doing so it grants it a level of credence, but when an article of this type is published in a leading peer reviewed journal, it is also important to respond so as to not lend it more legitimacy. Of course, there are issues over how to interpret the past. Of course, there are issues with the Genocide Convention, its construction, application and its place in the wider space of international criminal law. But Bennett’s piece is not about that.

Bennett’s key argument is that “violence would understandably remain in the memory of any people with a sense of self-respect, or at least with a sense of self-preservation. […] the 1622 massacre serving as a pivotal experience: an existential warning.” This rhetoric, situated in the language of white genocide that originated in Nazi pseudo-science and is often propagated as a white nationalist conspiracy theory, has made it into a peer reviewed international law journal and we want to ask how?…

Bennett builds his whole argument on one historical fact – the massacre of 347 English colonists in the Jamestown area. The first misuse of history in the argument is then to denote the English colonists in the Jamestown area as a distinct group for the purposes of the Genocide Convention. He distorts the raw number of 347 by presenting it repeatedly as a percentage of this invented group. He further distorts the percentage by continuously slipping into describing this as nearly all the colonists.”

The authors argue that Bennett’s article should never have been published. Since their blogpost, Anne Peters, the editor-in-chief of The Journal of the History of International Law issued a statement:

“The editors of the Journal of the History of International Law (JHIL) distance themselves from the political message of the article [by John T Bennett]. The publication of the article in JHIL does not entail any approval or support on their part. We acknowledge that the paper should not have been published in the JHIL. The academic quality of the piece is questionable and it was clearly driven by a political agenda. The review process was insufficient in this case. We editors acknowledge that the blog by Aoife O’Donoghue and Henry Jones offers strong arguments against the article. We will change and improve the process and are eager to involve the academic advisory board in this.”

One can and should read O’Donoghue and Jones’ critique. There seems to be little doubt that Bennett overstates his anachronistic case for genocide. There is a widespread public confusion between genocide and massacre, but how such a mistake could become the basis for a peer-reviewed article in a respected journal is troubling.

—Roger Berkowitz

Why Free Speech

David Cole, National Legal Director of the ACLU, defends his organization’s representation of Jason Kessler, the organizer of the Charlottesville rally, and makes his case for why free speech still matters.

“The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rights—speech included—are enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers, who in turn have more privacy than the homeless. The fundamental right to choose how to educate one’s children means little to parents who cannot afford private schools, and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants’ rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent, thereby contributing to the endemic disparities that plague our criminal justice system.

Critics argue that the First Amendment is different, because if the weak are silenced while the strong speak, or if some have more to spend on speech than others, the outcomes of the “marketplace of ideas” will be skewed. But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trump—or indeed Obama—administration can control what can be said. If free speech is critical to democracy and to holding our representatives accountable—and it is—we cannot allow our representatives to suppress views they think are wrong, false, or disruptive.

Should our nation’s shameful history of racism change the equation? There is no doubt that African-Americans have suffered unique mistreatment, and that our country has yet to reckon adequately with that fact. But to treat speech targeting African-Americans differently from speech targeting anyone else cannot be squared with the first principle of free speech: the state must be neutral with regard to speakers’ viewpoints. Moreover, what about other groups? While each group’s experiences are distinct, many have suffered grave discrimination, including Native Americans, Asian-Americans, LGBT people, women, Jews, Latinos, Muslims, and immigrants generally. Should government officials be free to censor speech that offends or targets any of these groups? If not all, which groups get special protection?

And even if we could somehow answer that question, how would we define what speech to suppress? Should the government be able to silence all arguments against affirmative action or about genetic differences between men and women, or just uneducated racist and sexist rants? It is easy to recognize inequality; it is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.”

Identity Politics

David Remnick interviews Mark Lilla in the New Yorker about Lilla’s new book criticizing identity politics. Remnick says that identity politics is an old American tradition and asks Lilla to define identity politics.

“Lilla: Well, certainly on the American right, ever since the Ku Klux Klan, we’ve had explicitly framed identity politics. That is in the sharpest sense. Now, you can say that people think of themselves as Italians or Jews or Germans, and then they become a kind of interest group. We’ve had interest-group politics before. But there’s a kind of essentialism to identity politics, where it means going out into the democratic space, where you’re struggling for power and using identity as an appeal for other people to vote for your side. And I think Bannon’s completely right, and I’ll stand by what I said: that it works for their side and it doesn’t work for our side, for all kinds of reasons. Now, that is not to say that we don’t talk about identity. To understand any social problem in this country, you have to understand identity. And we’re more aware of that than ever, and that’s been a very good thing. But, to address those problems with politics, we have to abandon the rhetoric of difference, in order to appeal to what we share, so that people who don’t share this identity somehow can have a stake, and feel something that other people are experiencing.

To give you an example, I’m not a black motorist. I will never be a black motorist. I don’t know what it’s like to look in the rearview mirror of a car and see the lights flashing and feel my stomach churn. But I am a citizen. And that person is a fellow-citizen. And, if we can make the case that there are citizens in this country who can’t just go for a drive without being worried about this, and they won’t be equally protected by the law, I think I can make the case to people who aren’t black that that’s a terrible thing, right? And so I want to frame the issue in terms of basic values and principles that we share in order to establish sympathy and empathy and identification with someone else.

Remnick: But, Mark, what are you asking African-Americans to do? Be a little less specific? More polite, somehow? You’re asking them to be less aggressive in their demand for justice, whether it’s on the road or on the street? I understand the over-all yearning for a more generalized rhetoric of “us,” of liberal values, of civil rights. I’m not sure why you have the disdain you do, the suspicion that you do, for a group like Black Lives Matter. You’re saying that they’re going about it in all the wrong ways, unless I’m misunderstanding.

Lilla: Well, to read the full passage of what I said about Black Lives Matter, I said, “Black Lives Matter is a textbook example of how not to build solidarity. There’s no denying that by publicizing and protesting police mistreatment of African-Americans, the movement mobilized supporters and delivered a wake-up call to every American with a conscience.” I’m totally onboard with that.

Remnick: So what did Black Lives Matter do that you’re, at best, ambivalent about—and very critical, really?

Lilla: And then I say, “But there’s no denying that the movement’s decision to use this mistreatment to build a general indictment of American society and its law-enforcement institutions and to use Mau Mau tactics to put down dissent and demand a confession of sins and public penitence played into the hands of the Republican right.””

Need To Know

Namwali Serpell considers the politics of language in African fiction:

“Whenever African writers are on a panel together, we are asked about the continent as a whole—its literature, its future, its political woes and economic potential. Whenever African writers get together on our own, we talk about glossaries. These additions to the main text, often vetted, if not entirely decided, by publishers, are crucial to how it will be received by readers. But when African writers talk about glossaries, we don’t just exchange tips. (How long? How comprehensive? By whom?) We talk about whether to include one at all, whether to offer glosses within the text or omit all glossing entirely. To gloss, or not to gloss? That is the question.

Most of us reading in the postcolonies never received glosses for the strange foods and weather of Europe. We had to figure out what snow and crumpets were on our own. When Chinua Achebe’s Things Fall Apart was published in 1958, his British publisher Heinnemann included a bilingual glossary. Achebe’s glossary was short, a mere page and a half, translating thirty-six Igbo words into English. Its purpose was pedagogical but it could also be seen as a political statement: these words belong here in literature; they are valid; here is what they mean. But it’s not difficult to see how the very fact of a gloss, like all supplements, casts doubt on whether the original word has done its work.

The politics of language in African literature have long been fraught. The very first conference on the subject, “A Conference of African Writers of English Expression,” held in Makerere in 1962, began by begging the question of its own title. Why was most extant African literature written in European languages? the writers wondered. Ngũgĩ Wa Thiong’o, in attendance, would decide within a decade that he would henceforth write only in his native language, Gĩkũyũ. He has nevertheless translated all of his Gĩkũyũ novels into English—full-scale glossaries, so to speak. A footnote to his Devil on the Cross reads: “In the original work, written in Gĩkũyũ, certain words and phrases appear in English, French, Latin and Swahili. In this translation all such words and phrases are printed in italic type.” This is a neat obverse of the norm: in many Anglophone African novels, the words from African languages are italicized. This is the other perennial question African writers toss around when we are alone together. To italicize, or not to italicize?”

Is There Anybody There?

Perhaps it’s because I recently finished Cixin Liu’s extraordinary first contact tale The Three Body Problem—which places the possibilities of discovering extra-terrestrial life in the context of turbulent domestic politics in China during the Cultural Revolution—the idea that there is life out there is much less romantic than it once was. Still, if there’s any hope for peaceful contact, it may be in the golden records, carrying some of the treasures of human culture, brought into the depths of space by the twin Voyager probes that were launched 40 years ago. Timothy Ferris, who helped set the project in motion, describes its genesis:—Josh Kopin

“In the winter of 1976, Carl [Sagan] was visiting with me and my fiancée at the time, Ann Druyan, and asked whether we’d help him create a plaque or something of the sort for Voyager. We immediately agreed. Soon, he and one of his colleagues at Cornell, Frank Drake, had decided on a record. By the time NASA approved the idea, we had less than six months to put it together, so we had to move fast. Ann began gathering material for a sonic description of Earth’s history. Linda Salzman Sagan, Carl’s wife at the time, went to work recording samples of human voices speaking in many different languages. The space artist Jon Lomberg rounded up photographs, a method having been found to encode them into the record’s grooves. I produced the record, which meant overseeing the technical side of things. We all worked on selecting the music.

I sought to recruit John Lennon, of the Beatles, for the project, but tax considerations obliged him to leave the country. Lennon did help us, though, in two ways. First, he recommended that we use his engineer, Jimmy Iovine, who brought energy and expertise to the studio. (Jimmy later became famous as a rock and hip-hop producer and record-company executive.) Second, Lennon’s trick of etching little messages into the blank spaces between the takeout grooves at the ends of his records inspired me to do the same on Voyager. I wrote a dedication: “To the makers of music—all worlds, all times.”

To our surprise, those nine words created a problem at NASA. An agency compliance officer, charged with making sure each of the probes’ sixty-five thousand parts were up to spec, reported that while everything else checked out—the records’ size, weight, composition, and magnetic properties—there was nothing in the blueprints about an inscription. The records were rejected, and NASA prepared to substitute blank discs in their place. Only after Carl appealed to the NASA administrator, arguing that the inscription would be the sole example of human handwriting aboard, did we get a waiver permitting the records to fly.”

Who We Are

In an interview Serbian actress Mirjana Karanović wonders at a time when it was, and when it might be again, that ethnic divisions meant little, if at all:

“I can understand that—and I rationally accept that—today these are all separate states, that there are separate parliaments, political structures, economies, ministries, etc. But the question of who is from where originally is one that existed regardless of Yugoslavia. Even before the creation of Yugoslavia, on this land, people were constantly migrating, settling and resettling, leaving again, looking for a better life.

My grandfather is—and before him, my ancestors are—from Bosnia. At some point after the beginning of the last century, my family moved to Serbia because there simply wasn’t any good land to work and they had to go where they could survive. All of this is revealed in our personal history, it’s written somewhere in our memories, but not in the history textbooks. I’m not talking about people belonging to a nation-state; I really feel that Bosnia is the place that I come from, in a different sense.

And who knows where the ancestors of my ancestors came from? I think that here, in the Balkans, genetic testing would reveal a shocking fact: that the majority of the genetic makeup of everyone here—Serbs, Croats, Macedonians, Slovenians, Montenegrins, and Bosnians—is almost identical. This space in which we now live, these Balkans, is an expanse across which many people passed, stayed, left. There is a Slavic base, of course, but everything is so mixed now.

Today, communication is faster and faster, and it’s much easier to travel to different places, to live elsewhere. In a hundred years from now, I don’t believe there will be anywhere on the planet that you’ll be able to call a nation of pure people. I think it is really absurd to even think this way, to somehow separate ourselves and say, “We’re not the same as you.” You have this in Croatia: “We cannot be like Serbs.” And you have the same thing in Serbia: “We are totally different from Croats.” Well, that’s not true. Scientific facts show something totally different.”

Bringing Them Freedom

Rafia Zakaria takes aim at the legend of the mini-skirted Afghan women, and, more importantly, the utility of a certain kind of faux feminism when it comes to fighting wars abroad:

“Amid the good-ole-girl backslapping of the June hearing, there was predictably little room for other numbers that attest to different conditions on the ground in Afghanistan. No one mentioned the U.N. report that shows a 400 percent increase in violence suffered by Afghan women between 2009 and 2014. Nor was there any discussion of the grim conclusion to the U.N. special rapporteur’s most recent report, which clearly states that “aid commitments have not translated into concrete improvements and that Afghan women”—and that Afghan women “remain marginalized, discriminated against and at high risk of being subjected to violence.” Also forgotten were the 100,000 civilians who have been killed in Afghanistan since the American invasion in 2001. American feminists, or at least the ones represented by FMF, were in agreement with General McMaster—believers in the premise that meddling is good, occupation is better and liberation, as Americans envision it, entirely exportable.

Feminism by force and the accompanying liberation by miniskirt is the lie that sits in the center of the American narrative of Afghanistan. If General McMaster used a photograph, others have used human props: Afghan women whose NGOs or educations are funded by American aid dollars are regularly paraded on the conference circuit, their gasping gratitude serving as a testament to the truth that a continuing occupation of their war-devastated country is necessary.

Afghan women, wearing miniskirts in 1972 or jeans in 2017, are hence made complicit in the destruction and occupation of their own country, exhibited as the flesh-and-blood reasons for why meddling is a must. A successful return to the days when women wore miniskirts in Kabul simply and self-evidently justifies the commitment of more soldiers, many more bombs and more imperial intervention. It now appears to be a simple dictum of Pentagon fashion that as skirts grow shorter, war grows longer.”

Posted on 27 August 2017 | 8:00 am

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