The New York Times - USA (2020-06-25)

(Antfer) #1

A20 N THE NEW YORK TIMES NATIONALTHURSDAY, JUNE 25, 2020


WASHINGTON — Senate
Democrats on Wednesday
blocked a narrow Republican bill
to incentivize police departments
to change their tactics, refusing
even to open debate on a measure
they denounced as an insufficient
and irredeemably flawed answer
to the problem of systemic racism
in law enforcement.
The vote, 55 to 45, was a setback
in the effort to pass legislation this
year to address excessive use of
force and racial discrimination by
the police, amid a groundswell of
public sentiment in favor of over-
hauling law enforcement. The
Democratic-led House is set on
Thursday to pass its own sprawl-
ing legislation, but Senate Repub-
lican leaders have said they will
not take up that measure, setting
the stage for a bitter stalemate on
the issue.
Expressing their deep opposi-
tion to the bill, Democrats de-
manded on Tuesday that Republi-
cans negotiate a more expansive
package that both parties could
support, citing the opposition of
dozens of civil rights groups to the
measure as drafted and arguing
that it was an unacceptable start-
ing point for discussion.
Senator Kamala Harris, Demo-
crat of California, told reporters
that Democrats’ decision to block
the bill was an effort “to not take
crumbs on the table when there is
a hunger that America has for real


solutions to a very real problem.”
“This movement will not accept
anything less than real, real sub-
stantial, substantive solutions,
which are the solutions we have
offered,” Ms. Harris said.
Republicans were livid at Dem-
ocrats’ refusal to even allow the
measure to reach the floor for a
debate and accused them of delib-
erately sinking the bill for political
purposes. It would have needed
60 votes to advance in the Senate,
where a three-fifths supermajor-
ity is necessary for most major ac-
tion. But only two Democrats,
Senators Doug Jones of Alabama
and Joe Manchin III of West Vir-
ginia, as well as Senator Angus
King, independent of Maine,
joined Republicans in supporting
moving it forward.
“If you don’t think we’re right,
make it better. Don’t walk away,”
Senator Tim Scott of South Car-
olina, who spearheaded the legis-
lation, said before the vote. He
urged Democrats to support ad-
vancing the bill “so that we have
an opportunity to deal with this
very real threat to the America
that is civil, that is balanced.”
“This is an opportunity to say
yes,” he said.
After the measure failed, a visi-
bly frustrated Mr. Scott returned
and delivered extended remarks,
saying that he had offered to give
Democrats as many as 20 votes on
proposed modifications to his bill

that they were demanding, but
that they had refused to accept.
Privately, Democrats noted that
revising the bill would have also
required the approval of 60 sena-
tors, a threshold they feared they
would not be able to meet.
“Instead of going forward and
getting what you want now,
they’ve decided to punt this ball

until the election,” Mr. Scott said of
Democrats. “You know why? Be-
cause they believe the polls reflect
a 15-point deficit on our side,
therefore they can get the bill they
want in November.”
“The actual problem is not what
is being offered, it is who is offer-
ing it,” he continued.
As Mr. Scott left the floor, sena-

tors who had gathered there to
hear him speak stood to applaud
him. One of them, Senator Tim
Kaine, Democrat of Virginia, who
said he had come to listen to Mr.
Scott in appreciation of his work,
launched into his own impas-
sioned speech, denying that the
outcome had been politically driv-
en.

“That is a stiff charge,” Mr.
Kaine said. “I voted not on the
‘what’ and not on the ‘who.’ I voted
on the ‘how.’ We tried it the wrong
way. Let’s try it the right way.”
The Republican bill would en-
courage state and local police de-
partments to change their prac-
tices, including penalizing depart-
ments that do not require the use
of body cameras and limiting the
use of chokeholds. It would not al-
ter the qualified immunity doc-
trine that shields officers from
lawsuits or place new federal re-
strictions on the use of lethal
force.
The measure that the House
will consider on Thursday, the
most aggressive intervention into
policing that lawmakers have pro-
posed in recent memory, would in
effect eliminate qualified immuni-
ty, make it easier to track and
prosecute police misconduct, re-
strict the use of lethal force and
aim to force departments to elimi-
nate the use of chokeholds.
Wednesday’s vote did not fore-
close the possibility of reviving
the policing measure. Senator
Mitch McConnell, Republican of
Kentucky and the majority leader,
used a procedural maneuver that
would allow him to bring it up
again in the future, changing his
vote from “yes” to “no” so he could
later call for its reconsideration.
But a flurry of private bipartisan
talks to strike a deal on the issue
had not borne fruit.

Senate Democrats Block Republican Police-Reform Bill, Citing It as Inadequate


By CATIE EDMONDSON

Senator Kamala Harris said the movement for racial justice demanded substantive solutions.

AL DRAGO FOR THE NEW YORK TIMES

Education Secretary Betsy De-
Vos fired a shot last month in the
nation’s culture wars, overhauling
how colleges handle investiga-
tions of sexual assault and ending
what she called Obama-era “kan-
garoo courts” on campus.
The new Education Depart-
ment rules give more protections
to the accused, primarily young
men who face discipline or expul-
sion as a result of allegations of
sexual misconduct.
The move set off a liberal up-
roar, denounced by unions repre-
senting teachers and college pro-
fessors, by the National Organiza-
tion for Women and by an array of
Democratic senators, The Trump
rules, they said, constitute a radi-
cal rollback of protections for vic-
tims who seek justice after sexual
assaults.
But Ms. Devos’s actions won
praise from a surprising audi-
ence: an influential group of femi-
nist legal scholars who applauded
the administration for repairing
what they viewed as unconsciona-
ble breaches in the rights of the ac-
cused.
“The new system is vastly bet-
ter and fairer,” said Prof. Janet


Halley, who specializes in gender
and sexuality at Harvard Law
School. “The fact that we’re get-
ting good things from the Trump
administration is confusing, but
isn’t it better than an unbroken av-
alanche of bad things?”
There are few more contested
cultural battlegrounds than col-
lege campuses and the rules that
govern sexual misconduct and
due process, and thorny questions
of how to define sexual consent.
Most often this battle is framed
as Left versus Right, feminist
against traditionalist. But that is
to miss a fierce and complicated
struggle within feminist and liber-
al circles. Several colleagues who
teach and write on gender and the
law have joined Professor Halley
in donning the cloth of heretics.
“I’m a feminist, but I’m also a
defense attorney who recognizes
the importance of due process,”
said Prof. Nancy Gertner, a retired
federal judge and lecturer in law
at Harvard, who opposed the
Obama-era rules. “These are
fences I’ve straddled all my life.”
The battle began in April 2011
when the Obama administration
sent a letter to 4,600 colleges and
universities, directing changes to
Title IX, the 1973 law that pro-
hibits sex discrimination in educa-
tion. There was an urgent need to
act: Recent decades had offered
too many examples of college ad-
ministrators and professors who
shrugged off complaints of sexual
violence as kids will be kids.
The Obama administration di-
rectives created a system cen-
tered on the person making the
complaint. They discouraged uni-
versities from giving the accused
the right to question accusers or
to learn the identity of witnesses.
In some cases, the accused could


not see the full evidence against
them. The rules defined sexual
harassment broadly as “any un-
welcome conduct of a sexual na-
ture.”
Perhaps most controversially,
Obama officials encouraged uni-
versities to appoint a single offi-
cial who acted as detective, pros-
ecutor, judge and jury. And they
set a lower bar to determine guilt,
changing from “clear and convinc-
ing” to “more likely than not,”
known colloquially in legal circles
as the “50 percent plus a feather”
test.
Advocates applauded the direc-
tives as sensitive to the trauma of
victims and a righting of the
scales of justice. But Professor
Halley and like-minded scholars
viewed these rules as dangerous
overreach, encouraging an arbi-
trary and unfair system.
Supporting the Trump adminis-
tration’s revamping of the rules
comes laden with risk, as more
than a few liberal critics accuse
these feminists of having lost their
way. Yet some of the strongest fe-
male voices in legal circles occupy
this hill of dissent.
Justice Ruth Bader Ginsburg
has said in speeches and inter-
views that the Obama-era regula-
tions deny due process and a fair
hearing to the accused. Nadine
Strossen, a past president of the
American Civil Liberties Union,
said on a National Review podcast
that the new regulations from Ms.
DeVos represented “a step for-
ward in due process for every-
body.”
Ms. Strossen’s former organiza-
tion, the A.C.L.U., takes a different
view and has filed suit to block the
Trump regulations. Ría Tabacco
Mar, director of the organization’s
Women’s Rights Project, said that
about one-third of the cases cur-
rently investigated under Title IX
would not qualify for considera-
tion under the new standards. The
Trump administration rules, for
example, would require colleges
to investigate only incidents said
to have occurred within dorms
and university buildings or in fra-
ternities and sororities, and not in
private off-campus and overseas
apartments.
“This is a dramatic break with

the Obama era,” Ms. Tabacco Mar
said of the DeVos changes. “It cod-
ifies the historical skepticism of
institutions as applied to rape.”
The precise number of women
assaulted on college campuses is
itself a subject of debate. Advo-
cates point to federal surveys sug-
gesting that one in five female stu-
dents have experienced assault
while in college, which amounts to
about 400,000 students. Even ac-
counting for a likely high rate of
underreporting, however, the
Federal Clery Act, which requires
colleges and universities to report
crimes on campuses, reported far
fewer rapes, with 8,529 in 2018. A
separate Justice Department
study from 2013 found nearly
28,000 students had reported
rapes, attempted rapes and as-
saults.
Professor Halley, the first gen-
der and sexuality theorist to get
tenure at Harvard Law School,
has long been a woman willing to
stick a dissenting head into a lion
cage of liberal orthodoxy. Too
many feminists, in her view, have
abandoned liberating freedoms
for the allure of governmental
power and punishment. As she

puts it, these activists have traded
the megaphone for the gavel.
Jeannie Suk Gersen and her
husband, Jacob E. Gersen, also
Harvard professors, have joined
in the critique of Title IX. They
wrote a law review article critiqu-
ing the creation of a federal “sex
bureaucracy,” which they said
leveraged “sexual violence and
harassment policy to regulate or-
dinary sex.” Professor Suk
Gersen’s assessment of the DeVos
changes appeared in The New
Yorker.
The Obama-era policy on Title
IX not only incited intense debate;
it also set off a flurry of legal chal-
lenges.
It was once vanishingly rare for
students accused of sexual mis-
conduct to challenge their univer-
sities. But for several years now,
such students have filed lawsuits
arguing lack of due process at a
rate of twice a week, according to
Professor KC Johnson at Brook-
lyn College, a critic of Title IX reg-
ulations who monitors such legal
challenges. And federal judges
have found that regulations tram-
pled on the constitutional rights of

students. To cite two examples:
In one case, two gay freshmen
at Brandeis College fell into a ro-
mantic relationship that lasted
nearly two years. They broke up
and, six months later, one student
accused the other of sexual mis-
conduct, including looking at his
private parts while they took
showers and kissing him while he
was asleep. Brandeis’s examiner
did not tell the accused student of
the nature of the charges and de-
nied him a chance to question wit-
nesses.
The student was found guilty of
“sexual violence.”
In 2016, a federal judge allowed
that student to sue Brandeis, ob-
serving tartly: “If a college stu-
dent is to be marked for life as a
sexual predator, it is reasonable to
require that he be provided a fair
opportunity to defend himself.”
The accused student eventually
dropped the case.
In another case, a football play-
er at Michigan State, Keith
Mumphery, used an online app in
2015 to hook up with a female stu-
dent for sex. The other student lat-
er accused Mr. Mumphery of sex-
ual assault; the police and the uni-
versity’s Title IX office examined
Mr. Mumphery’s text messages,
took a DNA swab and talked to
nurses, and cleared him.
After he graduated and entered
the National Football League, the
female student appealed that ver-
dict with Michigan State, and Title
IX officials reopened the case. Mr.
Mumphery knew nothing of this.
He was found guilty of sexual as-
sault, and when the decision be-
came public, the Houston Texans
football team cut him loose.
Two years later, after a pro-
tracted legal battle, Michigan
State wiped Mr. Mumphery’s
record clean and paid him an un-
disclosed sum of money. But his
N.F.L. career apparently is over.
Professor Halley experienced
her own epiphany on these ques-
tions years ago: She had a female
colleague, she said, who lodged
complaints against several male
faculty members. Ms. Halley and
other professors believed her at
first, before coming to doubt her
allegations.
“We feminists were surprised;
we assumed no woman would

step forward without wrongdo-
ing,” she said. “It was all about our
acceptance of prevailing dogma.”
That understanding has in-
formed her view of the Obama-era
Title IX regulations. Sexual de-
sire, to her view, is messy and idio-
syncratic and laden with ambiva-
lence, and it is folly to think that
institutions can sort campuses
into a regulated world of victims
and perpetrators.
To their critics, Professor Hal-
ley and her colleagues want noth-
ing more than to topple the pillars
upholding critical feminist re-
forms. Prof. Lama Abu-Odeh at
Georgetown described Ms. Halley
in a2018 essay as a sexual libertar-
ian who used a “cunning bull-
ishness” to pursue an anti-femi-
nist deregulation of sexual har-
assment.
A prominent defense attorney,
Wendy Murphy, delivered a with-
ering criticism of Professor Gert-
ner, who had written a 2015 cri-
tique of the Obama regulations for
The American Prospect, titled
“Sex, Lies and Justice.” (The
women had a history: In 1991,
they squared off against each
other as Ms. Gertner successfully
argued the appeal of a man ac-
cused of raping a fellow freshman
at Brandeis.)
“If you can’t stop using your
self-described status as a feminist
to hurt women,” Ms. Murphy
wrote in a 2015 open letter to Pro-
fessor Gertner, “then please just
stay silent.”
Do such attacks sting? Profes-
sor Gertner paused. She worried
about Ms. DeVos’s motives in re-
working Title IX. But she saw too
many flaws in the Obama-era reg-
ulations. “This notion that I am a
‘so-called feminist’ because of my
views on due process?” She
chuckled dryly. “I call that the fas-
cism of the women’s movement.”
Nor does Professor Halley shy
from intellectual battle. She
waves off the notion that fighting
for the rights of the accused, and
grappling with the complications
of sexual behavior, is somehow
anti-feminist and anti-woman.
“Many people think I’m a bad
feminist and thus not a feminist,
but that does not follow,” she said.
“It’s just that we disagree about
what to do in the feminist frame.”

Some Feminist Scholars


Say New Assault Policy


Is Fair to the Accused


“Many people think I’m a bad feminist and thus not a feminist, but that does not follow,” said Prof. Janet Halley of Harvard Law.

DAVID DEGNER FOR THE NEW YORK TIMES

Prof. Nancy Gertner, a retired federal judge, said she “recognizes the importance of due process.”

ERIK JACOBS FOR THE NEW YORK TIMES

A battle over Trump’s


rules for campus cases


on sexual misconduct.


By MICHAEL POWELL
Free download pdf