A Higher Degree in Blame

Last November, John P. Dwyer, dean of UC Berkeley’s Boalt Hall law school, resigned amid charges he had sexually harassed a 25-year-old female student in the winter of 2000. According to news stories, Dwyer and a group of Boalt students went out to a restaurant to celebrate a victory in a student case. Much drinking ensued, and when dinner was over, the group repaired to a bar for more celebrating and more drinking. Around 2 a.m., Dwyer gave the young woman a ride home to her Oakland apartment. There, she passed out on her bed. According to her lawyer, Laura Stevens, she awoke about two hours later to discover Dwyer fondling her; he left, and she passed out again. Dwyer admitted that a sexual encounter took place but claimed that it was consensual.

Thanks to the student’s tardy revelations, the dean is gone. Case closed? Not so. Stevens is now demanding that the law school make “substantial changes to prevent the kind of atmosphere that allowed that kind of thing to take place,” she told me.

Her demand is a sign of the dangerous direction in which university sexual-harassment policies are proceeding.

Could Boalt Hall be as bad as Stevens claims? More than 50% of its students these days are women, the female law students have their own lounge (the men don’t), and UC Berkeley has a Title IX officer whose job it is to handle complaints exactly like the one that Stevens’ client alleges. The officer also deals with administrative follow-up procedures, which is how it came about that Dwyer resigned.

Stevens, however, wants more: for the law school to set up a comprehensive sexual-harassment training program to teach students, professors and administrators how to create an “environment” in which no female student would ever have to suffer from unwanted male attention. The program would entail not only re-education, but a law-school speech code that would forbid even the cracking of jokes that “make women into meat,” as Stevens puts it. It seems that Dwyer had a reputation for “frequently staring at women’s bodies” and making them “feel uncomfortable” (Stevens’ words), and that once, at least according to Stevens, his hand brushed against a young woman’s thigh while he paid her a personal compliment.

“He’s a sexual predator,” charges Stevens. More evidence of his alleged predation: Dwyer, who had taught environmental law at Boalt for 16 years before becoming dean in July 2000, had dated students and even married a former student. Stevens contends that if Boalt’s faculty and administrators had had the kind of training that she now demands, they would never have hired him as dean in the first place.

The Boalt Hall case has thus wandered far from the original issue of what took place two years ago. That might be a good thing for Stevens’ client. Detective work by two Web-loggers -- University of Pennsylvania associate English professor Erin O’Connor (Critical Mass) and San Francisco software consultant Stefan Sharkansky (Shark Blog) -- has raised serious questions about the student’s credibility and the alleged harm the incident has done to her career.

This doesn’t excuse Dwyer’s conduct. Even if the encounter was consensual, as he claims, his behavior was highly unprofessional and unbecoming the holder of a prominent post at one of the nation’s leading universities.

It is one thing for a dean to invite students over for a glass of sherry; it is another for him to drink himself blind with students until all hours of the night, and then hop over to one of their homes for a romantic liaison. Dwyer paid an appropriate price for his poor judgment.

Still, even the student’s mentor and confidante, Boalt Hall law professor Linda Hamilton Krieger, is now talking in terms of “perceived ... sexual harassment” rather than an actual assault.

“Perceived” sexual harassment? That’s a highly subjective standard, like “making women feel uncomfortable,” or “jokes that make women into meat.”

Legally speaking, sexual harassment started out as a form of sex discrimination, forbidden in the workplace by Title VII of the federal civil rights laws, and in colleges and universities by Title IX. The idea was that it was discriminatory for a male professor, say, to give a female student a B in torts rather than the A she deserved because she wouldn’t be nice to him. Later, courts ruled that it was also sexual harassment to foster an atmosphere in which bosses and fellow employees felt free to prey sexually on those of the opposite or even the same sex. This has put universities into the business of policing sexual encounters between professors and students and even between students and fellow students.

Dealing with accusations of date and acquaintance rape has proved to be an administrative and public-relations nightmare for universities, because the accusations typically present exactly the sort of “he said, she said” impasse, coupled with a lack of corroborating evidence, that arose in the Dwyer case. Part of the problem is that such incidents are often accompanied by heavy alcohol consumption, so that neither party can reliably recall what happened. According to a 1990 study by UC Berkeley, 75% of college men and 55% of college women involved in allegations of acquaintance rape had been drinking or using drugs beforehand.

Once you classify an incident as sexual harassment -- as opposed to getting juiced and doing something you regret later -- you have an alleged victim, invariably a female, for the idea seems to be that inebriated men are responsible for their actions but not inebriated women.

Catholic University of America held a mediation hearing last year in a case involving a pair of students, a dorm room, beer and sex. The young man was allowed to question the young woman about her claim that the sex part wasn’t consensual. In a court of law, that would be known as exercising your constitutional right to confront witnesses against you. The female student, however, leaked her story to a sympathetic press, claiming that she had been doubly traumatized by having to be in the same hearing room as an alleged rapist, and the male student was pressured into leaving school. We’ll never know what the actual circumstances were.

According to an article in the Chronicle of Higher Education, Harvard University conducted seven full-scale investigations into incidents of alleged date rape during the 2000-01 academic year but found enough corroborating evidence to warrant discipline in only one. Finally, Harvard changed its procedures so that such cases couldn’t be opened without sufficient corroboration.

The solution to these perennial problems engendered by combining hormones and booze is supposed to lie in universitywide compulsory “training.” University of Massachusetts-Amherst professor Daphne Patai, in her book “Heterophobia: Sexual Harassment and the Future of Feminism,” has described some of those campus re-education sessions: Man-hating facilitators vent, while students and even full professors are forced to play simulation games designed by the harassment industry that cast white males as stock villains.

As for the Stevens-proposed restrictions on offensive speech (a.k.a. censorship), the good news is that courts have usually struck down campus speech codes as violating the 1st Amendment. The bad news is that universities keep enacting them anyway.

A Harvard Law School committee, for example, is drafting a speech code after a professor made a tactless remark in class that was construed as racist.

In the Dwyer case, involving two highly intelligent adults, what are we supposed to do -- raise the drinking age to 35? Even the alleged victim’s supporters seem to agree that her case isn’t strong, and from what we know about her, she suffered no professional harm.

But that doesn’t seem to matter to the sexual-harassment industry. What matters is seizing on some excuse, any excuse, to push through a campuswide regime of vague and subjective standards that would place all interaction between the sexes under a legal cloud.