I have no clue why someone decided to send me a review copy of Alexandra Brodsky’s new book. She was a founder of Know Your IX, a self-described “survivor” advocacy organization that has propounded the worst of the lies and disinformation upon which the campus sex tribunals rely. I’ve mentioned her here a time or two, but rarely favorably. Yet, the book came in the mail.
Having read some of Brodsky’s writing in the past, and it having ranged from the depth one would expect of a C+ sophomore at a third-rate college to a facile effort to dissemble shamelessly for the cause, I opened the book with reluctance. It did not take long before my head began to pound and my eyes began to bleed.
As a lawyer, I get frustrated when public discourse gets so much wrong about what due process actually means, especially when legalese serves as a cudgel to discourage debate. I’ve seen too many thoughtful Twitter conversations about the hard ethics of how to treat sexual harassment allegations cut off by a passionate but legally indefensible argument that “due process” provides a clear, legal answer — even when it does not, technically, apply at all. By disguising moral arguments about fairness in legalistic terms, such interlocutions can make it difficult for other to engage.
What’s this Yale Law grad up to with this nonsensical gibberish? Brodsky is trying to shift her position from the extreme lunatic fringe of “survivor” activists to being an “honest broker” for both “victim” and accused. This book, through the use of vague anecdotes of dubious accuracy, combined with pseudo-legal “analysis” that would make a real lawyer’s head explode, is posturing for the purpose of turning due process into some squishy goo that will trick the unwary and unduly passionate into believing that the hundreds of federal court decisions very specifically holding what process was due are mere suggestions, to be shrugged off when the “survivor” is sad enough according to that voice of nouvelle moderation and reason, the new and improved Brodsky.
This is part of a scheme she’s attempting to perpetrate, as reflected in her claim of getting along with “both sides.”
Because of our overlapping interest in fairness for all students, Know Your IX was sometimes able to forge fruitful relationships with members of “the other side.” Away from the media, with room to admit ambiguity and uncertainty, we had conversations with advocates for alleged student harassers. When it came down to it, we could often find substantial agreement and distill what we actually disagreed about to no more than a few logistical questions. Many of us favored the same model for student disciplinary procedures, an “inquisitorial” hearing in which students can question one another through a neutral intermediary. Those conversations gave me hope that, with care and good faith, consensus was within reach. We could build procedures that treated all students equitably and with dignity.
And who are these mysterious folks from “the other side” who share her love of the “inquisitorial” model? This is Brodsky’s version of the “Canadian girlfriend,” a steaming pile of bullshit. But I digress.
Alexandra Brodsky is pretending to grow up, out of her lunatic fringe stage and into the mature reasonable person stage, and wants us to accept that she’s shed her advocacy roll as a flaming hysteric and shameless liar and now embrace her as a voice of reason and fairness.
There are four principles of due process that, in my view, are particularly important for our debates about sexual harassment.
- Due process takes many forms.
- Due process depends on the stakes.
- Due process involves a balancing test.
- Due process does not change based on the specifics of the allegations.
The last of these “principles” sounds almost principle-ish, except that’s not where Brodsky takes it. Rather, her point is that accusing a male student of rape sounds like it’s a criminal accusation, but since it’s in a campus sex tribunal, it’s just another civil admin proceeding. No biggie, and don’t let that nasty “rape” word concern you. Nothing to see here.
But how, you may wonder, will this effort to reinvent herself play with the ignorant masses? Michelle Goldberg at the New York Times almost bought it.
Where “Sexual Justice” is clarifying and instructive is as an intervention into debates about who should handle sexual assault allegations, what standards of evidence should be used and what protections students should be afforded. Brodsky offers a convincing rejoinder to those who question why schools are investigating sexual abuse in the first place, rather than simply calling the police. She emphasizes that many institutions have internal disciplinary processes that work differently than criminal courts. Students who commit vandalism or get in fights are regularly sanctioned by their schools, and no one considers it an outrage against due process.
Brodsky understands, however, that nonjudicial processes for handling sexual assault claims will be discredited if they seem like kangaroo courts. Accused people, she writes, should be clearly informed of the charges against them. Both parties to a conflict should, ideally, have people assigned to them to help them navigate the system, and each should be given the chance to tell his or her story, present evidence and rebut the other side’s account. Brodsky’s book’s “mantra,” she writes, is that sexual abuse allegations should be subject to “the same procedures used for all other misconduct that implicates similar interests and similar stakes.”
To be fair, Goldberg is no lawyer, so it somewhat understandable that she could be so easily deceived, particularly when she wants to be. But she swallows whole the simplistic nonsense that being labeled a rapist in perpetuity is the same as having to write “I will not spray paint ‘Black Lives Matter on the dean’s front door'” one hundred times on a laptop.
And as eludes Goldberg, due process isn’t about the accused having a full and fair opportunity to challenge such a heinous accusation, but creating the appearance of just enough due process to make the Inquisition look enough less kangaroo-y to slip it past the unwary or deluded. After all, Brodsky’s a lawyer, so anything she says about law must be real because lawyers aren’t allowed to just spew utter nonsense, right?
But even Goldberg, who concedes she’s in the tribe, can’t quite be convinced.
Perhaps this is faint praise. I think I share Brodsky’s politics — I’m broadly sympathetic to the movement she helped catalyze, but also take its civil libertarian critics seriously — and was frustrated by how, despite her respect for nuance, she elides some difficult issues. Part of the problem is her decision to mostly gloss over the expanded conceptions of sexual assault that are key to many campus controversies. (She does say, in her conclusion, “Definitions of sexual harassment should be neither under- nor over-inclusive.”) Usually, it is unfair to criticize a book for what’s not in it, but it’s hard to evaluate whether institutional discipline is just without understanding what people are being disciplined for.
Brodsky plays it as vague and fuzzy as possible, trying so very hard to overcome her history by feigning just enough concern for the accused to convince her team that she can be trusted. But even Goldberg realized that Brodsky was glossing over the hard details to create the appearance that she’s not as biased as anyone could be. But she is, and this book can’t conceal that she’s either a bad lawyer or completely full of shit. Or both.
Alexandra Brodsky wrote a book to rehabilitate herself in order to have a seat at the table now that the Title IX scam perpetrated by Lhamon isn’t going to fly anymore. In this way, she tries to create some cred where she has earned nothing but disdain so that she can push her “inquisitorial” agenda against “the other sides'” demands for due process. Don’t buy this steaming pile of bullshit. Don’t buy this book.
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