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Where Do Progressives Stand on Civil Liberties?
with Lara Bazelon
I recently spoke with the lawyer, law professor, and author Lara Bazelon about a fascinating, disturbing case of hers. A black, male college student was accused of rape by a white, female fellow student and found culpable by the university’s Title IX investigator, despite a wealth of evidence suggesting that the accuser’s story didn’t quite make sense. The male student had no representative advocating for him, was convicted of no crime, and was barred from presenting exculpatory evidence, and yet his life was, predictably, thrown into disarray. Lara is a feminist and a progressive, but she saw in the case a violation of the right of the accused to due process, and she took up his defense in civil court, pro bono.
In the following excerpt from my conversation with Lara, she outlines some of her misgivings about progressives’ recent stances on free speech and due process. She’s in the uncomfortable position of having to side against organizations like the ACLU and with Donald Trump and Betsy DeVos in their attempts to add protections for those accused of sexual assault to Title IX regulations. On the one hand, she wants to defend the equality and safety of women. On the other, progressives seem to her too willing to sacrifice civil liberties in order to further that end.
We might ask what it means that issues once seen as belonging to progressives—free speech and due process—now find themselves with fewer and fewer defenders on the left. I admire Lara’s resilience in acting according to her principles, no matter the political pressure she faces. If more progressives were willing to take these stands on civil liberties, they might chip away at Trump’s appeal for those who may not approve of him but are more worried about the illiberalism of his opponents. I wonder what my readers think of this proposition. If progressives took hard-line stands on civil liberties, would they broaden their appeal enough to ensure a Trump defeat, should he run in 2024?
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GLENN LOURY: Again, I'm not a legal analyst. It just seems to me a lot is riding on consent here.
LARA BAZELON: Yes.
On the facts that you just described there, having sexual interactions of one kind or another. She was okay with this, but she was not okay with that. A lot is riding on that. It would be easy for me to envision ambiguities and differences of interpretation.
Am I justifying rape here? I think that's what people are gonna say at the end of the day. “Passions of the moment,” I was about to say. It's a negotiation. I'm sorry. I know it sounds terrible. I know. Please just correct me. I'm asking for correction. I want guidance here. Because this kind of thing that's going on between the man and the woman, the man and the man, whatever, in the moment of this dynamic, ex post facto to back away from that and interject, “At this moment it was yes, and then it became no.” And you're gonna bring the law into that? You're gonna ruin people's lives because of that? I don't know. Bail me out, please. What am I saying that's wrong?
So I'm listening to you, and this is why talking about this is so hard. Why is it so hard for you and I to have a conversation about this? What if we were talking about a robbery? What if we were talking about a murder? And it was being adjudicated on campus and adjudicated in court. I think you and I would be having a much easier time than we are right now. So why is this so hard?
I think it's really hard for a couple of reasons. It's hard because we've come out of this, and we're still in this Me Too era, where we are acknowledging how we've been treating women, including on college campuses. And I can tell you, having been on them, it was not a picnic in the '90s when I was on college campuses and there wasn't Title IX and things happened to me that were not great and I had no recourse. It's not as if most people who say they've been sexually assaulted are making it up, right? So we know all of this.
We know we have this really awful history of throwing these allegations out the window, burying them under the rug, whatever your metaphor. We have all of that going on. And at the same time, we have a system of assessing serious allegations in our country that is about proving and is about being skeptical and is about asking where is the evidence. And so those things are bumping up against each other.
And then you layer onto that the nature of the allegations that we litigate in my clinic, which are generally cross-racial. You have a history in this country of white women and black men and rape allegations. When you put all of that together, it's such a mess, and it's really hard to know how to say and do or feel the “right thing.” “Never mind. Stay on your own team.”
Your own team. So was there a rape culture on campuses in the '90s when you were a student, in your opinion?
No, I wouldn't say there was a rape culture. I would say that there was no mechanism to really report when something happened. I would say that there were just a lot of situations where there was some level of coercion and things ... I mean, I'm being inarticulate here because I'm struggling to think about some of my own experiences. I had some experiences where I really felt badly treated and coerced and even sometimes physically pushed to do things. At the same time, I'm not really sure that even if I had had a Title IX mechanism available to me, I would've used it. Or even that, in my mind, I thought of it as an assault. I think I thought of it as “bad sex.”
What about “believe women”? Isn't that part of the problem? Isn't that why it's difficult? Because, one, not only is there a history of the cross-racial allegation, there's also a history of discounting the victim of rape because, you know, she's “a slut.” The woman in the case at hand, your Jane, certainly would qualify as a target if we were back in the old days where that kind of thing could get into the discussion. We're not in the old days anymore. We've learned that you don't judge by the length of the girl's skirt whether or not she was inviting an attack. Likewise, you the administrator in the case at hand is siding with the girl because she believes her. She says she believes that she did not want that, and it happened to her. And you believe women. So you're a traitor not only to your progressivism but to your sex.
That's right. You're a traitor to your gender.
Thank you for the correction.
I think you put your finger on exactly what it is that makes it so uncomfortable that the slogan coming out of Me Too was "believe women." But I find that deeply problematic as an advocate, because I don't think that any gender or race or ethnicity has a monopoly on the truth. We don't say “believe men.” We don't say “believe X ethnicity.” We say, “Show me the evidence.” We say, “We're gonna test your allegation.” And so there's something to me that's so problematic about that. It feels like an over-correction. And yet my even saying to you, “No race or gender has a monopoly on the truth,” as I'm saying those words to you, they seem highly controversial.
We do live, Madam Law Professor, in the era of high-profile sexual assault allegations having tremendous political resonance. One thinks immediately of Brett Kavanaugh. You're gonna believe Christine Blasey Ford, you're not gonna believe Brett Kavanaugh, even though you're decades beyond and it's very hard to get the facts. I mean, you're just gonna believe her out of solidarity with a certain sensibility, a certain side within the political culture conflict. I wonder if that kind of sensibility—Whose side am I on? Who am I? What are my values? What are our institutional values?—if that doesn't creep in through this administrative process to the adjudication of individual cases like the one that your client John was caught up in.
You're exactly right. And, yeah, go ahead.
No, I was gonna say political theater.
Yes, so that's the other layer, is the political theater layer and being on one team or another. I think the piece of this that we've not talked about, which I feel like is important, is that these cases are at the center of a culture war. And the institutions that traditionally I would've expected take the side of the accused do not because of the way that the culture war is so politicized.
The best example I can give you is the ACLU, which is this 100-year-old bastion of civil rights and the belief that no one is guilty until proven guilty beyond a reasonable doubt and standing up for the most depraved, awful people, including Nazis having the right to march in Skokie, et cetera. And when the Trump administration came out with guidelines that required, in these campus cases, things like a hearing and cross-examination and a neutral fact-finder, the ACLU tweeted out to their 2 million followers, “These regulations are terrible and unfairly favor the accused.” I can only conclude that they took that position because they had become the foremost legal colossus that was opposing every single thing that Donald Trump did. They were the tip of the spear of the Resistance.
But it's completely antithetical to their century-old mission to say that putting in basic procedures like the ones I described to you unfairly favors the accused, and that's where my “tea” is, which again makes this so uncomfortable. I am a progressive. I'm a feminist. I feel like as I'm saying these things to you, maybe your listeners don't even believe me when I say it.
I believe you. She's okay, guys. Okay, Trump. The Obama Education Department, the Trump Education Department, they have different approaches to the question of the enforcement of Title IX regulations. And Trump bad, Trump bad. Therefore, anything Trump does or Trump agent Betsy DeVos does bad. But you actually think Obama was wrong. The Obama administration's treatment of this issue was wrong. And that's the rub, right? I mean, when you actually look at what the different policies were, you favor the policy of the Trump administration. He's not necessarily wrong about everything.
Exactly. And that, again, is deeply uncomfortable. And to make it even more complicated ... I mean, obviously I didn't vote for Donald Trump. I can't stand everything about him. He's anathema to me. And I was certainly not a fan of Betsy DeVos. At the same time, you're absolutely right. Those regulations that were put into place, they were badly needed. And in fact, they were in line with what almost every single court was finding when these cases were ending up in civil litigation. Almost every court was coming down on the side of the Trump regulations, because that's just basic common sense.