Welcome to the Megyn Kelly Show your home for open, honest and provocative conversations. Hey, everybody, it's Megan Kelly. Welcome to The Megan Kelly Show. Today, we've got Casey Johnson, who you need to know. He's brilliant. He's an expert in a really important topic. Among other things, he's been very closely following what's happening to young men on college campuses, were accused of sexual assault or harassment and the kangaroo courts that they are subjected to in trying to defend themselves.

I'm really focused on this and I have been for many years, in part because I do think it's so important to have a fair process both for the woman and the man.

And the less fair it is for the man who gets accused, the fewer women who are going to be believed because people no longer have faith in the process.

So I think it's equally important for all parties involved that we have a fair process, that due process is afforded the accused in these proceedings. And it hasn't been. The stories we're going to go through today are going to make your your hair curl up.

I mean, it's it's it's upsetting. It's infuriating. It makes you want to do something about it, but it doesn't get talked about enough. So I've been covering this for years. Cases helped me. He's actually an American history professor at Brooklyn College and City University of New York, the graduate center. He went to Harvard, then University of Chicago, then back to Harvard. So this guy is very smart and a college professor. So not only has he been studying what's happening on college campuses, but he's been on college campuses for most of his adult life.

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

Here's what's happening. The procedures afforded to accused young men under Barack Obama were nonexistent. They basically you got accused, you got convicted, and it was terrifying and really unjust. And then Trump came in and with divorce, they reversed it and they got a lot of the procedures restored. And now Joe Biden has said that, and I quote, Any back stepping when it comes to Title nine. This is a statute that's at issue we'll get into it is unacceptable anything and that they are going to restore the procedures that were in place under the Obama Biden administration.

So here we go again, one step forward, two steps backward. And if you know anybody who's headed to college in the next eight years or just just care about justice and the procedure in this country, you have got to hear this interview. All right. But first, it seems like every day, everywhere, practically everyone is connected on their devices. Right?

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Casey Johnson, thank you so much for being here. Thank you for having me. I've really been looking forward to this conversation. I told my team from the day we launched this show, you know who I want on this program?

Casey Johnson. You've done amazing work, amazing work, staying on top of what has happened when it comes to due process and our universities.

This has been like this is stuck in my craw for years now, because even though many people associate me in some way with the Metoo movement and I, I acknowledge I had a role that I make no apologies for in that movement.

I'm also a lawyer and I believe in due process. I believe it it's essential to the rights of those who are accused and those doing the accusing. The system doesn't work unless it's fair for both parties and it hasn't been. So Betsi Dubosc gets in there and tries to make it fair and Joe Biden's trying to undo what she did. So we're going to get into all of that, are going to go through some cases. Let's start at the beginning just so the audience understands what is Title nine?

Title nine is a federal statute which was passed in 1972 and sort of an early period of feminism.

It's it goes through Congress at roughly the same time Congress is considering the era, and it requires all schools that receive federal funds, which is basically every school in the country, because federal funds under the law are defined as if you get student student aid assistance or Pell Grants or anything like that.

So basically, every college in the country is required not to discriminate in their educational program on the basis of sex. Very short statute. The debate was relatively perfunctory in Congress. It was it was overwhelmingly approved on a bipartisan basis. It was signed by President Nixon and for its first twenty five years. And I think to a certain extent, even today, it was best known for what is to me one of the great public policy successes in higher education of the last half century, the growth of female athletics.

And so, you know, it was it was a system that required schools to give colleges to give female athletes the same rights that they gave to male athletes. If you had lots of male teams that have lots of female teams, but it was seen as a kind of balancing agent, it was in 1972, there was no suggestion that it was going to be applying to campus disciplinary processes at all.

Mm hmm. I remember there was a line in that movie, The American President, where somebody was talking to Michael Douglas fake president character and saying something like, you know, the president said, you know, I think Title nine has been in effect for a long time now, Bob.

And the other guy goes, I know, sir, but they're really trying to enforce it now, but lamenting, you know, the push for female athletics at colleges, which, of course, we all want.

I mean, now, in retrospect, it's easy to see that was important. We needed it. It's good. And then once it got expanded to OK, it also includes the right not to be sexually harassed and assaulted on campus. OK, good, because no one wants that either.

And for too long, like when I went to college back in, you know, the Dark Ages, 1988 to 1992 at Syracuse, there were a lot of sexual assaults and rapes and date rapes, which we were just getting familiar with at that in which the accused maybe maybe the pendulum was too far in his favor. Right. Like the women had a very uphill battle trying to prove these claims. There was an assumption that they were nuts and the standard was high and most of them were just too afraid to do it.

At that time, they knew that the deck was stacked against them. So, OK, all in good faith to try to correct this. I'll I'll give everybody that they wanted to correct the imbalance. But then, like most things, we overcorrected. So the Obama administration comes in there and what they did, I don't even know if I can say this. This is in good faith because this should have been obvious from the start that this is fraught.

In April 2011, they issue what's called a Dear Colleague letter, and it was issued by Joe Biden.

So just in case people have any doubts about where his his intention intention is here and tell tell the audience what that did the April 11th, dear colleague or dear friend letter that went out to the colleges.

Right. So this is a document which is which is issued through the Office for Civil Rights. So that's the the office in the Department of Education that enforces Title nine. And it builds off the premise, which you just talked about, that colleges have both a legal and a moral obligation to address sexual assault because it constitutes discrimination in education of female student who has been sexually assaulted and then has to go to class with her, with her rapist. That's going to deny her an opportunity to, you know, to receive an education.

So no one really denies that that's that's necessary for schools to do. What the Dear Colleague letter did, however, was as guidance. And so this was this was a document was just written by the Education Department. It didn't go out to the public for comment, didn't go to universities for comment.

It didn't go for Congress to commit to to require. Colleges essentially to to place a thumb on the scales in favor of students who filed complaints and along with guidance that was issued in 2014, a longer document called the Question and Answer Document, the dear colleague letter required again, basically all schools to adjudicate sexual assault through a series of procedures that made it much more likely that students would be found guilty. And so schools were required to use a preponderance of the evidence standard.

Many schools have used a higher standard, as called a clear and convincing, which is basically 75 percent or so certain. Preponderance is 50 percent.

And and to feather it required schools to allow accusers to have the right to appeal a not guilty finding so know in the criminal process would be considered double jeopardy. Do you have a system where a student can be found not guilty originally, but that is subsequent found guilty of second time.

It required schools to train their adjudicators. And this was one of the most troubling aspects of the of the of the provision. You would think. What could possibly be a problem with that?

Well, the the training that was used was called trauma informed training, which which gave to the adjudicators a sense that basically any behavior would be consistent with guilt. And it was training that was not shared with the accused student. So, again, in the criminal justice process, this would be the equivalent of, say, if the prosecutor was able to give the jury six hours of training that made them more likely to return a guilty finding and never even had to share that information with with the defense being obviously unfair process.

And then finally, and maybe most importantly, the guidance strongly discouraged and in effect prohibited under the term the procedures that most schools used, the right of an accused student to cross-examine his accuser. And in these cases where, you know, not all the time, but but but most of the time, there are no other witnesses apart from the two students who were involved in the incident, the ability to ask questions of each side and probe their weaknesses is critical.

I mean, the Supreme Court has described cross-examination as the best tool to to pursue the truth. And the goal in the Obama policy was to ensure that didn't happen and that the premise of the policy, it was not well explained when it was issued. The only factual premise was, was an assertion that that that hundreds of thousands of female students every year are sexually assaulted, which again, on campus, which, if true, it would suggest that the typical campus is a very, very dangerous place now.

Not true. It's not true. And then but but the subsequent rationalizations for the policy really isn't quite interesting. And the core premise, I think, of the Obama approach was, was to create a system in which victims of sexual assault would feel comfortable reporting their offense, which, of course, again, is something we all want, but that the best way to do that would be to create a system in which anyone who files a sexual assault complaint would know going in that they were never going to be asked tough questions about their allegation.

And that's sort of a system that turns turns everything on its head. It presumes the the guilt of the of the accused.

Right. I mean, I always go back to this and this is how I first got to know you. But you take a look at what happened in that Duke lacrosse case. What if what if no tough questions had been asked of the accuser, Crystal Mangum, in that case, then we have three boys still in prison for a crime they didn't commit. And that was a case in which these three young men, in case we have a very young audience members, which I know we do, back in 2005 or so who were accused of raping gang raping a young woman who was an exotic dancer, who came to their lacrosse party one day.

And it was all made up that they got charged their whole lives were at risk. And she made the whole thing up with the help of a corrupt D.A. who was running for re-election in a city that was half black, half white. She was the alleged victim was black. The accused were white. There was class, there was race, there was privilege at issue. And he saw an opportunity to run in a hotbed case and get himself another term as D.A. and increase his pension.

That guy since been disbarred and spent a day in jail for his behavior and she wound up going to jail much later for attempted murder. I think of her boyfriend after the fact.

OK, so anyway, my point is Casey wrote a book about this. He was thanked publicly by the three defendants in that case for being open minded to their innocence that, you know, open minded to anything. Right. But most of the people reporting on the case were not open minded to the possibility of innocence. And you were to your credit. And so that's your background. So you're you're taking a hard look at this evolution in the law and in college.

PCs and how we're going another way, how we're we're back now, forget presumption of innocence for the accused, its its presumption of guilt. Right.

And the lacrosse case was really the reason that I started to focus on this issue in the aftermath of a dear colleague letter, because I think one of the assumptions behind the Dear Colleague letter, and this is if you listen to to Biden's speeches on this at the time, Biden is, as you commented, was the person I introduced the Dear Colleague letter and said Biden seems to operate under the premise. And I think the Obama people did as a whole.

The campuses were back in the dark ages, you know, in the 70s and 80s where everyone just wanted to sweep sexual assault under the rug. And the Duke lacrosse case was it was a case where you could not have come up with more obviously innocent students, you know, there. But there was one of the guys who was accused was in a great stroke of luck for him, happened to be on video at an ATM machine like two miles away from the party.

At the time, he was alleged rape. And the joke was that even in Durham, the laws of physics do apply and you can't be in two places at once. And and yet on the Duke campus, the president of Duke, outspoken members of the of the faculty, you know, issued statements presuming these guys guilt. So it was a reminder of the way, I think, in which the different population of the of the faculty I mean, it's no secret that that most college campuses, especially elite college campuses, lean very far to the left on on issues of race and class and gender, created a campus culture in which students were presumed guilty.

And so when this Obama guidance came out, universities were more than happy to implement it, oftentimes even more zealously than the Obama people were demanding. As a result of the guidance, you've got a situation where the federal government was sort of pushing at an open door and empowering the true believers on campus who really saw their mission as rectifying injustices of the past by punishing innocent people in the present. And, you know, this is a that's a kind of system that's never going to work.

It's had such parallels with what we're seeing right now with race and the messaging around critical race theory. Speaking of punishing the president for the past, people who had nothing to do with slavery or Jim Crow are being treated like they were they were the ones behind it. So, yeah, to your point, politically, it was appealing to the professors and administrators who are being given this Dear Colleague letter. Can I just ask you before we get to it, though, into more, can we talk for a minute about why there really aren't hundreds of thousands of sexual assaults on these campuses every year and these numbers?

And believe me, believe me, I'm very open minded to women claiming sexual assault and harassment. I am. I've lived it. I get it. But we have to stick to reality and understand that some people manipulate these numbers because they themselves have an agenda. And that's what's happened with these numbers here. The numbers are not as large as as claimed. And why is that? Right.

So as it say, there is absolutely no question that if you look at the data here is consistent, that the people who are who are experienced sexual assault, the most in American society are women age 18 to 24. Alcohol is frequently involved. And so campus, it's not as if campuses are immune from from this approach.

The the problems here are sort of twofold with these with these surveys. The first is that they tend to define sexual assault. They never ask a student, were you sexually assaulted or were you raped? They instead described behavior.

And they describe it in very, very broad ways, often times using phrases like unwanted sex, which may mean, you know, sex that you just didn't really want, but you never really communicated that. And so there's that there's a problem with with with definition.

The second is that these surveys tend to focus the most the largest of these, which was done by the by the Association of American Universities called the A, you tend to focus on residential colleges, but the majority of American students do not attend Harvard or Yale or Lafayette or Lehigh in a four year residential liberal arts colleges or Ivy League Tier one universities, instead that they attend schools like where I now teach Brooklyn College, which is a non residential school, or they might be part time or and for these students, they're not experiencing sexual assault any differently than the general population would.

So it was it was these these were numbers that were focused on a particular kind of campus and that it was generalized out to assume that it would include include everyone. And so the result of the figures that the Obama administration used was a claim that one in five female undergraduates would be sexually assaulted at their time in college. That would translate. There were roughly 10 million female undergraduates, so that would translate to roughly two million sexual assaults every five years on campus.

And if that's true, that would suggest that a typical college campus is by far the most dangerous place in the United States. And yet these advocates never called for increased police presence or increased enforcement or anything like this. And so even even the the truest of true believers in this area, by the policies that they recommended, it was clear they didn't really believe the figures either.

Well, and it's not just unwanted sex to go back to that. It's unwanted touching. So, I mean, that's really ambiguous, right? If you're going to lump in unwanted touching with every instance of sexual assault, you're going to run your numbers right up.

I mean, some of us remember that is college. A guy takes a shot. You know, he's he's making out with you. You don't want to make out with him. You push him off. That's the end of that. He gets the hint. You walk away. No harm done under today's standards. You could you could list that as a yes, as a as a a sexual harassment, potentially sexual assault, because it's an unwanted touching in these surveys that an instance like this would be would be sexual assault.

And so, yeah, consider say at a party, people are dancing. One person brushes up against another. It may not even have been an intentional brush up, but the the other person considered that to be unwanted. If she could answer honestly in these surveys, that was sexual assault. But the average person, when they hear one in five women have been sexually assaulted on campus, they're thinking quite reasonably that what we're talking about here is the commonly understood definition, culturally and legally of sexual assault.

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

And it also doesn't make any allowance for another very real dynamic on college campuses in particular, which is the Sunday morning regrets. You know, you have it about alcohol and a lot of women have it about hookups, about guys. They nine times out of ten alcohol was involved. They had too much. They made a decision when it comes to fooling around with a guy that they'd like to have back. And too many times we've seen that translated into it was nonconsensual at the in the moment it happened because women feel shame about it the next day.

And women do need to be very careful about making sure you know of the difference between non consent in the moment and. Just deep regret after the fact about what was at the time, a consensual encounter, correct? And there's a there's a retroactive withdrawal of consent in some of these these cases. And there is no typical campus sexual assault case, but anyone in the litigation in this area on both sides. These are cases that often involve both parties have been drinking.

They often have only vague recollections of what they occurred in most of these cases. These are things that the parties, probably both students, probably would not have done if they were fully sober. But, you know, the nature of campus, you know, social and cultural life is that students often drink and sometimes they drink too much. And, you know, they do things that they would would not do if they were if they were sober. But that's a learning lesson that's not in and of itself sexual assault.

Now, of course, you can drink to excess where you're you're you're passed out or you no longer have the ability to just say no. I mean, but that's a completely different standard. Well, let's pause there.

Let's pause on that because. What is when you can rape somebody who was conscious while the rape was happening, if she is incapacitated and that's what we saw in that case, God, what was the case, Casey, where the woman was taken out behind the dumpster on the college campus, the Stanford case, Stanford, the Stanford case? OK, so that that was the issue there, that she was alive. But she that woman is actually basically unconscious and she was incapacitated.

You can drink so much that you're basically incapacitated.

But what about a woman who is just just drunk, drunk versus incapacitated? How do they draw that line?

And this is this is the one of the critical problems in the campus process in in a criminal justice process. That line can be relatively easily drawn during the investigation. But during trial, through cross-examination, you can ask the complainant, you know, how many, how many, what did you have to drink? When did you have to drink and establish a kind of base, alcohol level at an on campus? However, what is frequently done in these cases is simply to blur the distinction between drunk and incapacitated or even more troublingly, to allow the the accusing students the opportunity to to simply say that she was incapacitated without any evidence thereof.

There's this this famous case that occurred at George Washington University in D.C. where the student was found guilty on the basis of incapacitation, even though the that the accuser was incapacitated, even though the accuser's own story was that she she had sex. She didn't she didn't like it. And so she said that she raced out the room and then and went ran down eight flights of stairs. Now, someone who can run down eight flights of stairs is not incapacitated.

And yet schools, schools frequently blur these blur these lines to to the extent almost where if if the accusing student has had any alcohol at all, that can be a definition of incapacitation.

So this is a real problem on the campus, if that is.

I'm saying it's so unfair. I mean, this is why we have young men and women now.

I mean, the men in particular asking women to sign a consent forms before they fool around at all because they're terrified. I'm not drunk.

I have full capacity. I could hear, I can see, I can touch my my index finger to the tip of my nose, you know, like they're basically doing field sobriety tests before they get back together.

Right now I laugh, but I'm 100 hundred percent going to train my boys to do all of that.

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Things were going nuts. Hundreds, hundreds of lawsuits started to get filed against colleges and universities by typically young men who had been subjected to these kangaroo courts, claiming that their due process rights were violated and they started winning. They started winning that these were blatant violations of the constitution of these kids rights.

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

And I people ask me all the time, like, what was Trump all bad to Trump? Do good things. And I think this is one of the best things he did.

I think any fair minded person could see that this this was an improvement of our system where he and Betsy Davos launched an overhaul of this system, and they did it in an orderly, procedurally correct sound way, trying to restore a fair process for all on college campuses.

They took input from victims rights groups, from defense attorneys. They didn't you know, they were conscious not to overcorrect back the other way. And now and we'll go through all of this. But now Joe Biden's, he wants to undo it all. He wants to revert back to the Obama era system where cross-examination is no longer available, discovery is no longer available.

You can't have a lawyer in the proceeding with you and the person, quote, trying your case more than likely is some sexual assault advocate who's got her thumb on the scale. She's not this is not an impartial arbiter.

Do I have it about right? You do. You do. Yeah. I mean, I think that I would agree and I agree with your description of of the Trump policy.

I mean, this was not an administration that did many things carefully, but in this area they did. And I think they did because of divorce. I mean, divorce is very controversial, education secretary. But but her handling of the of this issue was was very deliberate. She went through the the normal processes and in a way that the Obama people did not, you know, the the the regulations that they issued took into account court rulings in this area.

There have been almost two hundred favorable rulings for accused students and people outside of education. I think in some ways can struggle to understand how and how unusual that is. Courts tend to be really deferential for for understandable reasons to colleges on disciplinary cases, because basically federal judges don't want to get in the habit of of saying that a student getting a B rather than a B plus is a due process violation where they can run off to federal court and, you know, and try to get the judge involved so that the students were winning these lawsuits.

There's no comparable episode for this in American higher education in the last 25 or 30 years. And divorces approach was basically to say, look, title nine is an equity law. It requires fair treatment for all students. Just as you can't discriminate against female students who are filing sexual assault complaints, you also can't discriminate against male students who are accused of sexual assault complaints. And colleges have to treat these cases fairly. So she you know, she required schools all over the vitriolic, ferocious opposition of most colleges and universities to create fair systems in which, you know, students would get both students, accuser and accused, would get access to the evidence.

There would be cross-examination done through their advocates. So you wouldn't have direct cross-examination by the parties, which which she dubost board would be, too would be too traumatizing. And also whether the the the hearing panels would be trained fairly and schools would have to publish that training to make sure that they weren't introducing secret biases in the in the training process. So one of the intriguing things is that the number of lawsuits since the regulations have been adopted have plunged because accused students are now getting fair treatment thanks to the existence, the existence of these of these regs.

Mm hmm.

She the new process reemphasizes the presumption of innocence and equitable treatment that gives school the flexibility to choose which evidentiary standard they're going to use, preponderance of the evidence, which is, as you say, 50 plus a feather versus clear and convincing, which is more like seventy five percent chance it happened.

It it it suggests we should adhere to the more narrow definition of sexual harassment that's been put out by the Supreme Court, unwelcome conduct that's so severe, pervasive and objectively offensive that that a college must have live hearings and cross-examination. But but it but it recognizes that within that definition that there would be sexual assault, dating violence, domestic violence, stalking, none of which would have to meet a severe and pervasive standard.

So to me, I read this as this is a woman trying bending over backwards to be fair to both sides, and also said that the schools cannot impose discipline on accused. Students until the end of the case, because these people were basically getting their scholarships yanked, getting all F's in their in their classes because they were bounced off of campus, their lives were effectively ruined before any judgment came down.

And she thinks that, correct? Correct. Yes. So, OK, so so the victims rights groups all along were promising to challenge.

But unlike unlike Obama, who just did this through a letter, she did this by what she did something that was sort of more lasting and tough to undo.

Correct.

She she she she went through this this federal law called the Administrative Procedures Act, which gives two federal agencies the authority to make regulations which have the same effect of of law. But to make regulations, you have to draft the regulations. You then publish them to solicit comment from the public. There were there were more than 100000 comments on the proposed regulations and divorcées team adjusted the review of the final regulations in response to these comments, which means that the regulations when they were issued, they were issued earlier in 2020, carry the force of law.

They cannot simply be withdrawn with the stroke of a pen by Vice President Biden, which is clearly what he would like to do. Mean, he said in the campaign that his goal would be to eliminate these fees very quickly.

Now, these the regulations were challenged by there were four lawsuits filed against them, too, by victims rights organizations, one of which, in a moment of everlasting shame for the organization, was represented by the ACLU coming out against Tampa campus due process. And the other two, it's it's unimaginable. And the other two were lawsuits filed by coalition, by New York State and then by a coalition of blue states and D.C. All of those lawsuits so far have been have been unsuccessful, although the Biden administration suggested putting one of the lawsuits on on hold for 60 days while the administration reconsiders its approach to the rule and that it's clear that the administration is going to try to move away from the rule as quickly as they can, but they cannot simply abolish it.

But with the stroke of a pen, they'll have to go back through a notice and comment process themselves.

Oh, it's like we we create one system than we undo it and create the other. And at least it's not an executive order, which he could just undo with an eraser. But he's determined. I mean, he is determined. And it's it's kind of crazy when you think about the fact that he himself has been accused.

And I interview Tara Reid very publicly of of a disgusting, disturbing act that he just has no appreciation for due process. You know, I think Tara Reid would tell you your due process is important, too, but he's too interested in pandering right now. And it's it's going to hurt a lot of young men. It's going to hurt them. It's going to ruin their lives. That's what we saw in the Obama years. People were having their lives ruined or nearly ruined.

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

Let's just start with what happened to Grant Neil, because that was the case that stayed with me, that won in the Amherst one that you and I discussed one time in the Kelly File.

Grant Neil Young, African-American athlete at Colorado State, state of almost three point seven, had a sexual encounter with his girlfriend, which neither one of them thought was rape.

As I recall the fact there was the portion of the sexual encounter where he didn't have on a condom and she wanted him to have on a condom. And so he waited a little and then he put one on and she was convinced by the roommate. It's correct me if I'm getting this wrong that that that those moments were not consensual and rape, essentially rape. And the school agreed. Right. Do it. Correct me if I'm wrong. Correct, and there was one additional factor in this case, the roommate then reported this to people in the athletic staff at Colorado State, and they were the people who filed the the allegation against Neal.

You had almost a game of telephone where an initial event that both parties considered to be consensual was redefined by this this conversation between the student and her roommate and then was subsequently redefined by a kind of third party allegation and the university which used a system. This was a case that occurred during the Obama years. There was no hearing. There was no opportunity for for Neal to challenge the evidence. And this was a weird case where there was really no accuser because the people filing the accusations had no firsthand or even second hand knowledge of of the allegations.

The university in this case, I think there were two things that were going on in the case that make it so, so important. The first is the university was afraid of the Obama people cracking down and launching an investigation of them if this came out. And second, this is an area these these campus title nine cases in which there are disproportionate numbers of cases where the accused student is African-American, especially cases where there is a white accuser and an African-American accused student.

And in virtually any other context, that kind of fact pattern would would, for very good reasons, really concern liberals, civil libertarians, civil libertarians. But but here it's just sort of been it's sort of been ignored. And Neal was lucky to get a good lawyer.

The you he drew a pretty good judge who considered the case fairly in Colorado. And it was important ruling that that said that the university handled this totally unfairly. And after that ruling came out, the university settled. Yeah, of course, thank goodness, because Port Grant lost his scholarship, he lost his place on the on the team, he had his life ruined over an allegation. As you say, even the accuser, the woman who should have been the accuser, was saying wasn't true.

She came out and said he is not a rapist. He is not a criminal. I was not raped. And still his life was ruined. That's how messed up these procedures were.

And as you rightly point out, the people who have taken a look at these at these violations of due process say they do have a disproportionate impact on students of color who get accused more, that black students are four times as likely as white students to file lawsuits alleging a due process rights violation. And so we do need this is one situation where we really do need to be paying attention to the disparate impact and people should be jumping up and down about it, trying to write a historical wrong.

Absolutely, but but but they're not. So, Grant, when he came on the Kelly file, he had filed the lawsuit, but it wasn't yet resolved. What they settled, they settled. And that is that is the common practice in these cases. Universities generally, they'll they'll lose at an initial stage of the of the litigation. And they desperately do not want to go to trial because when they do, they they uniformly lost in this area.

And the problem for universities when it goes to trial is it exposes their dirty laundry, which they don't want, you know, which they don't want laid out. But a student like Neal, you know, he he ultimately got a settlement. Presumably the settlement was a pretty favorable one. Otherwise, he wouldn't have settled. But he can't get his college experience back. He can't get his athletic scholarship back. That that's just gone. Mm hmm.

Right now, we can't talk about it because these things always have gag orders. Correct. So you're no longer allowed to explain to people what happened to you. OK, let's talk about Amherst.

This is one of the of all the stories I covered while I was at Fox News.

This is one of the ones that stands out to me because it was such a travesty of justice. Can you give us a general overview of what happened in the in the Amherst case?

This is just it's a shocking case. So this is a case where you have an accused male student who was drinking very heavily one night on a weekend. His his girlfriend was out of town. The the roommate of his girlfriend encountered him. They started making out. She invited him back to his to their room. She performed oral sex on him. She immediately seems to have recognized that what she did was wrong. And she started texting friends saying that she needed to come up with a good lie because otherwise, if it got out that she had seduced her roommate's boyfriend, she would lose all of their her friends.

It did get out what she had done. She did lose all of her friends. And she migrated into a campus victims rights group. And eighteen months later, she filed a Title nine complaint saying that she had been sexually assaulted. Amherst investigated this. They never looked at the texts. They found him guilty, the texts that she had sent that evening, which contradicted her story in multiple ways beyond just the the assertion that she was searching for a lie to explain what happened, the texts were discovered.

This is one of the most incredible facts in any of these cases to me by the accused students, former girlfriend, who was furious at what he had done for for reasons that I think anyone can understand, but was also furious at the accuser because and she put this in an affidavit, she said this is just this is a travesty for real victims, for the accuser here to do this. So so the the accused student has all of these texts, which are which are wholly exonerating texts.

He presents them to Amherst and he says, look, you have to redo your your approach. And Amherst response in subsequent court filings was was that wasn't the case because they said under Amherst policy that texts from an accuser would only be relevant if they came after the accusing student had decided that she was sexually assaulted. This is just an extraordinary way of of doing things. So you have a situation where you have all of this exculpatory evidence. And Amber said it doesn't matter because she said she later described that she was sexually assaulted.

So he was expelled and he was expelled, interestingly, by name. So he was identified by name in a campus wide email at IMR. So everyone knew that he was identified as a rapist and he sued. And his lawyer is is one of the very best lawyers in this area, a guy named Max Stern who practices of Boston. And what what Stern did was he recognized he had an he had an innocent client. And this was a case where not only was the client innocent, but under Amherst's definition of sexual assault, the accusing student in this case actually had sexually assaulted the male because under her definition, under her uncontroverted testimony, she brought him back to the room.

She initiated oral sex on him. She then said she withdrew consent in the middle of the oral sex, but he was incapacitated. He was experiencing an alcoholic blackout for the entire time. Amherst ignored all that. So it went it went to federal court. The the court issued a preliminary ruling greenlighting basically the entire lawsuit. And Amherst very quickly settled thereafter for for reasons that that were easily understandable.

But this was an extraordinary case where, again, if anything, the victim in this case of sexual assault was the male student. And it was a case where you have you have a college. The reason that colleges and universities exist in our country is that they're supposed to be beacons of the truth. They exist to pursue the truth. And here the college was saying, we don't care about the truth. We just care about getting this guilty finding and kicking this this guy out.

And this was another student of color case. So the accuser in this case was white. The accused student was Asian-American, and yet there was no concern about racial just. Authorities on on campus. Oh, this just like just hearing it is making my blood boil the looking back at some of those texts.

So this is a girl who goes in there at the hearing and says, like, I was I was sexually assaulted, I was raped. And my activist friends who helped me understand, you know, I was his victim. And what what came out thanks to her ex friend, her ex roommate, who was, you know, the girlfriend of the accused at the time, who then, as you point out, later, was just mad, mad about the whole thing.

But she had seen the texts, is the alleged victim was texting around about the alleged her alleged rape quote. Obviously, I was not innocent. And then as soon as it was over, she texted NRA saying, OMG, I just did something so fucking stupid in the area. Says What? She says, I left John Doe. John Doe is what we're calling the guy in this case.

And the Army says, no, you didn't. She says, yes, I did. And then what did this woman who took the stand and talked about how traumatic it was for her was so traumatic, what he did to me?

What did she do when the encounter was over?

She said, I was so traumatized that I just called a friend because I needed to be comforted. I was distraught. Yes, I happened to be a male friend. But, you know, I needed some comfort. And it turns out she she had sex with that guy to another guy comes over and she has sex with him and her texts about him. I'm going to quote now because she's irritated and she's texting your friend about why it's taking so long for this guy to have sex with her and she texts.

Why is he just talking to me like hot girl in a slutty dress? Make your move. Yeah. And then the follow up text the next day was, OMG, action did not happen until 5:00 in the morning. This girl got away with ruining the first kid's life. And this was a case where those texts with the sexual encounter with the second guy were so important because what she told the panel and the panel seems to have believed her here is that she was so traumatized that she had to invite a friend.

And so for the for the hearing panel that found this, the guy guilty, they believed that know she had a friend and she probably cried with this person for for the evening describing her traumatized event. And when the text came out, it was discovered that this was that she simply lied. And so, you know, in some of these cases, you know, the the accuser isn't so much lying as it's a kind of ambiguous case and an unfair process wouldn't yield a guilty finding.

But it's this is this this was a case of malevolence. I mean, this this was an accuser who was just simply lying outright. And and again, the college didn't care that that's the case.

I don't get it when I recognize you're saying we're not going to pay attention to the text. They said because they postdated the event and somehow that's all baloney. But I don't even understand how they could even pretextual. They get away with that.

And to me, that's that's what so I mean, I'm a college professor. I'm an academic lifer. I've been on campus for my entire life. And, you know, these are students and the colleges simply do not care. There's a there's a kind of greater good mentality that seems to have taken root on the Title nine issue where it's like, yeah, maybe this John Doe in Amherst is innocent. Maybe Grant Neil is innocent, but their lives need to be sacrificed for a greater good of ensuring that we eradicate sexual assault on campus and a few innocent people get punished.

Well, you know, that's the way the cookie crumbles. And it's it's it's not the way we should be looking at campus justice.

You know, I had a friend at Fox who was tangentially related to my year with Trump coming after me and all that crazy stuff.

And, you know, at the time, I was not really in love with Donald Trump and not I'm not a huge fan of his back in the day and. And he was supportive of me and understood all that, but we were covering a lot of this on the Kelly File right up to my last day at Fox News.

And we had a very honest conversation toward the end, like right before the election. And he said he had a young son who is going to be going off to college soon and he was going to vote for Trump.

Because of this and people look back, they don't understand how he got elected. They don't look. He's horrible, but look what he did to women. But it's like I get all that and I understand his flaws and, you know, real and imagined.

There's a lot with Trump, but this is exactly what what would drive people to go.

I mean, I can understand, I got two boys, two I've got a daughter and two boys. And God, no, I don't want them going off to college with this system in place awaiting them.

Right. Right. That's absolutely. I mean, you know, I think that anyone who has a college age son, I have two nephews and, you know, it's it's it's so transparently unfair. And I think what frustrates a lot of fair minded people is that defenders of this, you know, if the Obama Biden system that was in place are simply impervious to to any kind of criticism, Biden has never even acknowledged any of these lawsuits. The Democratic legislators I mean, Nancy Pelosi, Kirsten Gillibrand has been outspoken on this.

In the in their minds, this is essentially a perfect system. And it's you know, it may be many things, but it's certainly not perfect.

And, you know, it's a good and because if this were the criminal justice system, these trials would be public. And I think there would be there would be uniform outrage at how blatantly unfair the pre divorce hearings were. But because on campus campus tribunals are always private because of this federal law called COPPA, which ensures that student academic records and educational records are non-public, it you only learn about these excesses as a result of the lawsuits that often are months or years after the fact.

So and the other thing, the other theme I'm seeing and looking at some of the cases that did come out is how biased the supposedly impartial arbiters are toward what would become the meme, believe all women.

And that takes me to the Oberlin case where I mean, there was like that was that was made explicit. That was made explicit in a case of of a young man who had they met at a party in December 2015. They had unprotected sex that night. He and his accuser really didn't see each other much for the next two months. Then February twenty sixteen, she drank. She texted him at 1:00 in the morning. Ladies, nothing good ever comes from that.

Do not text anybody at 1:00 in the morning. Every man alive considers that a booty call. Said she was going to smoke some pot. Could you come up after? No man on earth has ever said no to that. Like he understands exactly what you seem to be offering.

Let's get real, right? Come on, let's get real. She arrived at his dorm, his room. One forty five in the morning. Small talk made out, took off their clothes. Then they started having sex someplace in the middle of it. They stopped. She said she was thirsty. He got her some water. They resumed sex, this time without a condom, stopped again. She said she wasn't enjoying it. She was. She was.

That just I don't know how to put this in a way. That's PG 13, but she wasn't enjoying it. Leave it at that and and said, I'm not sober. And then he said, how about oral sex? And she gave it to him. That oral sex is the alleged rape, she wound up saying that wasn't consensual because she had said out loud, I'm not sober and there a long, awful process. The school wound up agreeing with her.

And expel the guy, and this was a process where the Title nine coordinator at Oberlin was explicit that she saw the purpose of these of the adjudication process as protecting the right of survivors. But of course, the goal of the process is to determine whether the complainant is a survivor. You can't just assume that she's a survivor in the start. And this was a case it was solely a credibility case. There were there were only these two parties, the male and female.

And 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 forced. The hearing panel didn't believe her on force. So they said that she really isn't all that credible. But then creditor or incapacitation, even though, again, this this assertion of of that it's I'm not sober, didn't meet the college's own definition of of incapacitation and the framing for this and this is this was something that the 6th 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.

And so had issued a public statement saying that that year, one hundred percent of the cases that were adjudicated returned a guilty finding.

They were bragging about their conviction rate, but they were happy.

That's that's what that's what they wanted in this case was inconvenient because the guy was so obviously innocent and they nonetheless had to sort of there to bastardize the facts. And this case ultimately yields a victory. Oberlin then settles very quickly after the 6th Circuit ruling. But here we have a student whose life is put on hold for four years.

You know that that's that's an unfairness in and of itself at a tender age to you know, it's a tender age, that transitional time from leaving your parents house to going out there into the world. You're not yet fully cooked. You know, you don't have all the skills you need to to handle this crazy life and all the stuff it delivers you. I mean, that's one of the purposes of college.

But this is too much. And when I read the guy's emails, you know, they call him John Doe, of course, in the proceeding, in the pleadings and so on.

But he he he was begging the person who is in charge of the process for some help.

He he wasn't it was taking way more than it was supposed to take, like way more many, many months. And he sent an email talking about his sleepless nights, how he developed eating problems. He was constantly thinking about this. It consumed my life. He said my grades have slipped, quote, I am a shell of my former self 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.

He had won one person who he was supposed to, you know, be able to talk to this guy, Josh Nolan, who is the investigator who wouldn't talk to him.

And then the process gives each accused guy an advisor. So we did have somebody there. And that guy, Assistant Dean Adrian Battista, why don't you explain to the audience what what a gem this person was?

Yeah, so and this is a guy who was appointed by Raimondo's. You have a system where the Title nine coordinator who says this should be a survivor centric process appoints the advocate, the person says, to be advocating for the accused student in the hearing about he still leaves the hearing in the middle of the process to get a matched a criminal trial with a lawyer just walked out halfway through and then a couple of weeks later tweets out that he believes he always believes survivors.

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. He's naive in that respect. 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 with the student who was actually innocent.

And, yeah, no wonder he walked out. He was like, I got this one, I believe all women by John Doe.

And then here to as in the case that we just discussed at Amherst. So this guy gets expelled, this innocent man gets expelled, he appeals. 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 Jabe came forward when he heard that this guy had been expelled and said to the university, you made a terrible mistake. She is not telling the truth and said she and her GB's, her best friend, had a conversation right after this happened.

She admitted this guy did not use force on her.

And when JBI got a look at the hearing testimony, he said it contradicted her story to him and many in many ways and that he went with the woman when she first wanted to. Or this and sat right next to her, so he he heard her then and he was like, she's saying different things than she said to me privately. But I'm sure this investigator she's talking to is going to contact me. Right. And and then that guy said, yeah, I will I will contact you.

Don't worry. Well, I'll interview you alone. Never did says porked JDBC sitting there like, oh my God, my best friend. She claiming to be a victim. I know her story is changing. She's lying about material stuff.

Maybe they'll call me holy cow, he's expelled. So the guy does the right thing.

He raises his hand, jumps up and down and says she gave false testimony and what happened and and the and he simply ignored the appeals process has no interest in hearing from from this. And the decision is is reiterated.

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? And and yet in here, as as an Amherst, they they were. And this student, you know, the guy who who spoke up this job, you know, this took a considerable amount of courage on his part.

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. He knows in this particular case that the woman is lying and he takes some risk. And going forward, I'm sure he lost some friends as a result of what he did.

And yet the college doesn't reward that courage at all. They basically say we don't care. We'll get back to Casey Johnson in just one second. 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. Why should Joe Biden have to face those same standards with all the accusations that have been hurled against him? Let's see how he likes it. Right. That'll be an interesting discussion.

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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.

And our executive producer Steve Krakauer has got today's question. Hey, Steve.

Hey, Meghan. This is a good one. It comes to us from one of our younger listeners, I would say a college student named Mason Stefanski emailed questions at Devil May Care Media dot com. And you can do 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. He says, Do you think there will be a transition from the workforce valuing a degree in 10 years or less?

That's a great question. 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 and then they'll get out with a bunch of debt. My kids won't. Let's be honest, I'll pay for their college. But most most kids will find a job that doesn't come near to covering the loans.

So it's I get why you're asking the question. I would still say it's worth it. That's my own personal opinion. But I wouldn't pay all that money, like for a Harvard.

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, because that always works well.

Like, I went to Albany Law School, which is certainly not like the greatest law school ever made. But for New York State, it's amazing. 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. So you could you could say the same thing for colleges. You know, undergraduate colleges sort of be strategic, is what I'm saying.

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 and I. I have this debate all the time with one of my close friends. Do you do you tell your kid to go along, to get along, to tell them to pretend to be a liberal so that he gets an A instead of, like, challenging these far left ideas and get a C? That's an individual choice.

Right. You better be really, really likable if you're going to do the latter.

Or you could just play the game and get through. Either way. It's bullshit, right?

It's bullshit that people who don't have far left views have to even think about this stuff. I'll end with this. I meant what I said earlier. I do think that those are tender years.

And when I think back of my college experience and granted it wasn't too far left in its indoctrination, I actually had a wonderful four year stint at Syracuse.

In many ways. I think back on my social experiences more than ever, 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. And that sounds amazing.

Maybe you get that at the Ivies. I wouldn't know.

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

It's wonderful living away. I'm home for the first time being surrounded by people your age, and it's incredibly social and fun and, you know, you have tons of friends, you know, you're just surrounded by tons of, in my case, girlfriends.

And then, you know, I fell in love. And it was just like between my close girlfriends and the the boyfriend I had for most of my college years who really changed my life.

I wouldn't give that back for anything. It was transformational for me as a person, as a human. So, yeah, I mean, that was my experience. I realize things have changed a lot. And I will say this. I don't think that you needed to get a degree to get a job.

I really don't. I think a lot of people, especially on the right half of the country, are not seeing that four year college degree is necessarily an asset.

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.

I think they're smart. They understand scrappiness better than they they may just a big degree from an expensive school.

And like, you don't want to be turned into a nerd, right? Like, I don't know, like IQ is important in life to people. 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.

And that's another thing you can work out in college. So it's not all about the academic payoff. So that's my long way of saying I think it's worth it depending on the cost. I think go go for the cheaper school, be strategic about it, but I wouldn't rule it off on principle yet. Thanks for the question, Mason. Now back to Casey.

There was another case that happened was at Brandeis, where it was two to two gay men, lovers for the better part of two years in a romantic, sexual, consensual relationship.

They break up four months later, 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, nonconsensual sexual interactions over the 21 months he'd been with this other guy.

Now, that's not impossible, I guess. So let's walk us through what happened and what sorts of complaints was he raising?

This is it's a truly incredible case. The accused student was was was given no notice. The the the complaint filed was two sentences, basically saying my entire affair, my entire relationship was not consensual. And the the accused did it again. Another one of these John Doe's was found guilty of, among other things, looking at his then boyfriend in the nude in the bathroom without asking advanced permission or what he called the relationship.

It's called the relationship or waking his then boyfriend in the morning with kisses. And by this definition of sexual assault, virtually any married couple in the country would have committed sexual assault at one point or another. 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. And what she did was to interpret each of these events as if these two students were meeting for the first time.

So obviously, if you 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 that's sexual misconduct. But this was not what was going on here.

So they were they were together for almost two years. And, you know, the testimony in the case was that it was a relatively good relationship until right near the end. And then it was a breakup.

So it was it was a factually absurd case. And yet again, we had a guilty finding this 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. So, again, there was a discreet harm as a result of this absurd approach. And we talked in the overlearned case about these appeals this guy appeals to because he says, look, this this is an obviously unfair process.

And in the appeal, Brandeis refuses to give him the investigators report on which he was found guilty. So he was quite literally appealing, blind.

He had no way of knowing what you know. So, of course, the appeal was was was denied. And this was the case. The the judge in this case, the judge, Dennis Saylor, said that to him, this process more resembled Salem in 92 than in Boston in the 20s. So I thought that that was a pretty appropriate comment.

I know. I'm just looking through the allegations that the accused would look at the accuser's private areas when they were showering together. OK, so I got an idea.

I have a tip for you, accuser. And then John, that's the accused would occasionally wake up Jaycee. That's the accuser by kissing him and sometimes persisted when Jaycee wanted to go back to sleep. Oh, my God, that's marriage. If I were the victim of a sexual assault, every time Doug woke me up and persisted, would I want to go back to sleep?

Are you kidding me? We've actually had a long talk. I said, honey, you don't want me under those conditions, trust me.

Because when when you actually do get me woken up, I'm just going to be grumpy. It's not going to be good for either one of us.

What we're world is it?

We're in a consensual relationship where somebody persists a little bit after an initial, like I'm too tired, turns into a salt, but it's happening and it's getting blessed by grown ups who aren't completely drunk.

Right, right. Right. That's that's the thing. I mean, these are our conscious, deliberate decisions by the university administrators. And and 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 British case was a really good one in this area and filed this lawsuit. You ask yourself how many students, you know, basically accept this because they can't get into federal court.

Federal court is expensive. I mean, these lawsuits cost tens and in some cases hundreds of thousands of dollars.

And so it's a very, very troubling process.

Just looking through the procedures that Brandeis had put in place after the 11 in the 14 communications from the Obama team, the accused, they had eliminated a hearing of any kind. Instead, they had instituted a special examiner who was going to conduct the investigation and decide the case. OK, great. What what could possibly go wrong with having the person who is the investigator also be the judge, jury and executioner? It was secret. The accused was not entitled to know the details of the charges.

The accused is not entitled to see the evidence. The accused is not entitled to counsel. The Yankees was not entitled to confront and cross-examine the accuser, not entitled to cross-examine any witness. The special examiners prepared the report, which the accused is not permitted to see until the entire process is concluded. And then the special examiners decision was final with limited appellate review.

I mean, how is this not been a front page story everywhere? I mean, how is this even happening in the United States of America?

And the one good thing we have is Orangeman Bad came in and reversed it.

And now the sweet, sleepy Joe, he's a moderate. He's not going to do anything radical. Don't worry. That's the lunatic fringe on the you know, he's going to ignore them.

Not only does he want to reverse it all again, it's just like first action item. It's on like day one. He said, I'm going to get after this. And and he's trying. Right. So he really is trying. Oh, yes, he's trying and I think there's almost no doubt that he that he will succeed in this effort, he is someone who is deeply committed to this at a personal level. This is someone whose views on a whole swath of issues have changed over the course of his career.

But in this area, he is he's consistent. And the great irony, as you pointed out earlier, under the system that he wants to impose on the nation's college male students, he almost certainly would have been found guilty and not just in the Tara Reid 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 and, you know, and and his career would have been over.

And one of the most incredible things to me from the Reid case, you know, his campaign issued a statement saying that it was the job of the media to ask really hard questions of Reid. But that's that's exactly what he wants to deny to students accused in these Title nine proceedings. So you get this incredible double standard where a person running for the nation's most powerful office gets fairer treatment than an accused student who has really no backing, no political support, no media support, no functioning support at all.

You know, I had assumed that after the Reid allegation, he would sort of realize the due process does matter. And maybe you want to make sure you have a system where the accused has a chance to defend himself. But he has he has he has doubled down on this earlier policies.

And of the cases we've discussed, I mean, that Amherst one is really God, it's awful. And it's just so awful with a woman in the text like Avey, I was an innocent. And here's the next guy who I'm going to have sex with 14 minutes after my alleged assault and all this stuff.

Can you tell us? I know there's an there's an update on the investigator who oversaw that case.

So the investigator in that case, it was a labor lawyer, an education lawyer from from outside Boston was subsequently hired by other colleges and universities in Massachusetts, most prominently Williams College, another excellent school in western Massachusetts, to train their Title nine coordinator. So you're in a in a in a sane world, you would have someone who who was saying, you know, we don't care about I don't care about evidence of innocence from these texts, because by that point, the accuser hadn't decided she was she was sexually assaulted.

So all of this exculpatory evidence doesn't matter that this person would never be involved in another Title nine proceeding again. Not only was she continued to be hired by Amherst, but she's now she's now training other words. And and I think that's that's a good illustration into the mindset in some of these cases, even in these terrible cases like Brandeis and Amherst and Oberlin and and the grant, the case at Colorado State, the people who who mistreat these accused students almost never suffer any adverse career prospects.

And so so there's there's there's basically no deterrent to to a kangaroo court.

It's so messed up. 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, it's like expelled almost all the time. But let's say it's some penalty short of expelled.

Do they get labeled? Do they get labeled in any way that haunts them? The men? They do.

And this is, I think, one of the things that this is a newish policy. I mean, it's only been around for for a decade or so. So so in these cases, their chances of going to graduate school, if they want to go to graduate school or to law school or med school, are basically zero because you have to do you have to divulge that you've been found guilty of sexual misconduct. If you project ahead a little further any job that requires a background check later on in their careers, they'll have to divulge that.

And I mean, most businesses for I think quite understandable reasons are going to hire someone who's saying, I've been found guilty of sexual assault.

You assume that's insane. But by a kangaroo court, as you point out, you were found guilty in a court with real evidence, evidentiary standards.

Right. But, you know, so you have a situation where these are basically life altering and life long punishments. And for the students who are expelled, their chances of getting admitted to another school, certainly another school, an equivalent level, in some cases another school at all, or zero. And if you think of how the American economy is changing, a college degree is, you know, it's increasingly critical. So these are decisions that over the course of their lives are going to cost these these students hundreds of thousands of dollars and earning potential, going to close off careers.

And of course, if they're guilty, they think they deserve this and more. The problem is that you have a system that really doesn't distinguish from from the innocent, from the from the guilty.

Why is there any way in which we can just get these hearings off of the college campuses, like out of their hand?

This is this is this doesn't even seem like a disaster that's fixable even under the Davos rules. I mean, is there any alternative? There are alternatives, so one of the things that Davos did that, you know, I think was was really quite commendable and got less attention is that it allows informal mediation. It allows this process called restorative justice. 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.

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, I think there there is there is no chance there's this Supreme Court decision from the 1990s called the Davis decision.

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. So schools can't simply say, all right, turn this over to the civil system, turn this over to the criminal justice system. We're going to wash our hands because if they did that, they would be liable to lawsuits from victims. So schools basically have to do it. 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.

If if the divorce rules stand because they did catch my eye, that it seems to be optional, whether they use a preponderance of the evidence standard versus clear and convincing, if the rules stand, must they afford more due process or is it optional? For the most part, they must.

So the only optional item in the divorce rules are the standard is the standard of proof, and all schools have chosen preponderance. So that hasn't been a change.

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. And so it's not a perfect system. I mean, schools don't have discovery power. So you have a situation where an accused student might know that there's evidence, text evidence, for instance, that that will exonerate him, but you can't actually subpoena it. But it's a much fairer system than than existed previously.

And one of the reasons I think the divorce rates were so good is that they basically, apart from the standard of proof issue, they denied discretion to the colleges. 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. So what you know, you say you have two nephews who are going to go off to college.

What what is your advice for young men heading off to college when it comes to sexual encounters like let's get real? What what should they be thinking? In a troubling kind of way there, although there are occasional cases that involve allegations from nonstudents, you know, for the most part, this is an area as long as the divorce regulations are there, I think that there is at least some fairness.

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. 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.

You can have a hundred cases with an identical set of facts, you know, drunk students with a one night hookup, 19 out of those cases, the students will move on with their lives with no problem. In the one hundredth case, however, it will it will result in one of these one of these proceedings. So the only way you can basically always avoid these proceedings is to avoid any kind of sexual contact on campus at all. And that's not a realistic approach.

And so, you know, the other is to be very careful 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 they're sober. And if you make a mistake here, again, we're not assuming that the guilty is just a mistake that triggers a charge. It can be a life altering event and you can really never get out from under.

That is terrifying. The whole point is like, you know, not doing anything dumb when you're when you've been drinking. Is because your judgment is impaired, but your judgment is impaired, so, so but like. Once you've had a couple of beers, your judgment's already impaired, and if you're thinking about at that point, it's too late. So you almost have to decide if I'm drinking tonight, I'm not going to hook up like. But that doesn't seem realistic.

I mean, it's been a long time in college, but that doesn't seem realistic. I really think, like, I want to talk to my fellow women. I want to talk to, like, young coeds and say, girls, number one, don't be a ho.

That's no, that was my role for myself. It's served me very well. Doesn't mean you can enjoy the college life and hook up where you feel it and want to do it. That's all good.

But like be discriminating and and own your own behavior, you know. And that doesn't mean accepting sexual assault or harassment. Absolutely not. 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.

Correct? Correct. And that's that's what the the jilted girlfriend in the Amherst case, I think, recognized that, you know, 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 malevolence can be can be a justified approach for for a victim.

And that's the cultural redefinition here is is a really problematic one.

What 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 it like sports teams and so on, the drunker they get, the more inappropriate they get and they do increase the risk.

I wouldn't say it would make a non rapist a rapist in a lot of cases, but there's no question that young men need to take responsibility for their behavior, too, 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. They are. And they have to take responsibility for that and be. Extra careful about it. Right. I think that's that's 100 percent correct.

What now, like what should we be watching Biden do, like to stay up on whether this is going to get undone? He's going to try to change the rules. People can speak up and comment to try to stop that. You said there were over a hundred thousand comments on the divorce rule changes. What's next for those of us paying attention this fight?

I think there are two areas.

The first is that only this one of these lawsuits that were filed against the divorce 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. The state of Texas, ironically, has as trying to intervene to defend the regulations. And so one question will be whether this lawsuit is is is a 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?

I suspect the court will look unfavorably on that. But but again, we don't know. These filings have been done quite recently. 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're going to issue new rules basically to replace the divorce rules. And and if that occurs, I think it will occur relatively quickly. They would want these new rules to be in place by the start of the academic year.

So I would be looking for something in the next month or two because colleges don't want to change their regulation, their procedures in the middle of the year. So within the next few months, I think we should have a pretty clear sense of what Biden is intending to do. And I suspect what we will hear from from them will be regulations that basically just returned to the 2011 era and pretend that all of these caucuses don't don't exist. And that's a risky approach for Biden, because I would assume there will be legal challenges.

But I think we'll see. I mean, quickly, I love the point you made, though.

That's I think it's great. You want to go back to 2011, 2014 saying let's do it and let's apply the exact same standards to you. And not just Harry Reid's allegations against you, but all the women. Let's just see whether the unwanted touching unleashed on several young women on tape would pass muster under these standards and in these courts that you're about to bless. Let's do it. And everyone goes down or up together. I mean, he doesn't he wouldn't.

It infuriates me. But but he's going to allow the lives of young men, you know, like the ones we've been talking about. 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.

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. OK, let's keep an eye on it.

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