I enjoy a bad op-ed every now and again. This one laments two changes in campus disciplinary proceedings, viz. (a) allowing disciplinary action against those judged to have committed sexual assault “by preponderance of the evidence” (as opposed to “beyond a reasonable doubt” or some such), and (b) prohibiting alleged sexual assailants from confronting their accusers.
It’s not as though the changes are a priori good. Whether they are good, bad or of no consequence depends upon the contingent natures of campus disciplinary proceedings, and sexual assault on campus. Berkowitz does not address the disciplinary committee’s institutional capacity e.g. to apply a standard of proof that acquires meaning only through a process of common law evolution, nor does he evaluate the incidence of false accusations of rape versus rapes that go unreported, so his remarks are basically worthless.
He does commit a few howlers though.
(1) Is it really the case that these procedural innovations disrespect the kind of “liberty of thought and discussion” that is valuable in the academy? I’d have thought that the Socratic ideal is best pursued in class, not before the honor council.
In the same vein, (2) are these changes really “illiberal rules . . . promulgate[d] to regulate speech and conduct outside of class?” The only speech they regulate is speech within the context of a disciplinary committee = not a problem. They regulate conduct obliquely, but the conduct is sexual assault, the commission of which liberalism is not committed to licensing. (I suppose Berkowitz could be referring, not to illiberal rules, but to what he perceives as the misandrous [and therefore illiberal] culture that these procedural changes engender. But he did say “rules.”)
(3) He also traces the rules to a polyamorous tryst between radical feminists, postmodernists, relativists and critical legal studies scholars, which seems a little much.
(4) Finally, he wants victims of sexual assault to face greater procedural hurdles because “On campus, where casual sex is celebrated and is frequently fueled by alcohol, the ambiguity that often attends sexual encounters is heightened and the risk of error in rape cases is increased.” Or, of course, colleges could prefer catching sexual assailants while disincenting “ambiguous sex” (read: sex where you don’t know whether the other party consents, so are gambling that your conduct doesn’t amount to rape).