Civil rights attorney and author Alexandra Brodsky has spent her entire career focusing closely on ways institutions can best address sexual harms. Her work is the subject of “Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash,” a book published in August 2021. She joins to talk about the importance of treating both victims and the accused fairly, the Biden administration’s response to Title IX, and what’s ahead as institutions seek to address sexual misconduct claims more equitably.
Note: This is a rough transcript — please excuse any typos.
Chris Hayes: Just a heads up that some listeners may find the content in this episode about sexual harassment, assault, and misconduct disturbing.
Alexandra Brodsky: There’s basic principles from our due process law that can tell us what are the tenets of fairness and that’s everyone should have the right to tell their side of the story. The person who’s accused should know exactly what they’re being accused of.
Everyone should have the chance to present evidence, including witnesses. The decision-makers should be impartial. And then the question is, you know, what’s the context, what are the potential stakes, what resources are available? And we can build up from that basic, bare bones procedure, fill in the gaps, give it meat.
Chris Hayes: Hello, and welcome to “Why Is This Happening?” with me your host, Chris Hayes. Have you ever heard someone say, “What about due process?” You have almost certainly heard someone say, “But (LAUGH) what about due process.” Sometimes this is raised in really, like, ridiculous and trolly ways.
Like, Donald Trump used to say it all the time, which would crack me up because there’s no one less process-oriented than Donald Trump in the entire universe. In the history of humans on the planet no one has (LAUGH) had less interest in process than Donald Trump.
And there’s a lot of times in which, you know, “What about due process,” which get raised I think often in the context of public accusations of misconduct, particularly sexual misconduct, sexual assault, sexual harassment, particularly against men people say, “What about due process?”
And it’s hard because there’s a lot of that that feels like kind of bad faith defensiveness. But then beneath the bad faith defensiveness there’s actually a real question. And it’s a question I think increasingly we have all come to confront in the sort of post-Me Too era broadly. But also I just think generally at this moment that for a lot of reasons a lot of institutions are struggling with how to put together correct processes to essentially adjudicate wrongdoing.
Now some wrongdoing, you know, lies in the sphere of the criminal justice system. But when it comes to sexual assault, sexual harassment, you know, sexual bullying there’s a whole bunch of reasons that people who survive, or are on the receiving end of that abuse, or survive it, don’t wanna involve the criminal justice system.
In fact, the vast majority of people that are on the receiving end of that don’t involve the criminal justice system. And often I think do for very good reasons. So then, you know, that’s one place where we have a law and we have a process, putatively, although anyone who’s actually reported at the ground level of American criminal justice understands that it’s essentially like an insane conveyor belt in which the nominal process (LAUGH) to which we all pledged is, like, sort of honored in the breach.
That said, when you take away the law, right, the law, vis-à-vis criminal justice or even civil suits and then you say, “Well, how does some institution X deal with an allegation of wrongdoing against a person? How does the public deal with it,” which is the sort of broader and squishier question.
But, like, this person says, this woman says, this man harassed her or groped her and what do you do about that? What does an employer do? What does a college do? What does any institution do about these kinds of allegations. And it’s actually a super complicated, fascinating, and fraught question because (LAUGH) to return to the sort of trolly question of process, like, yeah, due process is really important and exists for a reason.
The protections that we have against, you know, self-incrimination, the protections that exist, in terms of the way the criminal justice system is designed and the U.S. Constitution and common law, you know, functions is to create the conditions under which people have rights when they are accused of doing something.
And those rights are important. (MUSIC) And fair processes are important in not just getting to the truth of adjudicating a dispute, what actually happened, but actually in distributing some form of justice or recompense. And that topic of, like, what actually does that look like, what does it mean to have this kind of process, is the subject of a new book by Alexandra Brodsky.
The book’s called Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash. It’s out right now. It’s fascinating. And Alexandra has a really fascinating background in all this stuff, where she was working at the ground level on all this. So she has a really, really important and interesting perspectives on this. It’s a great pleasure to welcome Alexandra to the program.
Alexandra Brodsky: Thanks so much for having me. I’m excited.
Chris Hayes: I think you’re the first ever dual guest on my wife Kate’s podcast, (LAUGH) Strict Scrutiny and mine.
Alexandra Brodsky: It’s a true honor.
Chris Hayes: Send some trophy or something. But I wanna start actually with Title IV. Because that’s in some ways where your story starts. You were a student at Yale University, right, as an undergraduate?
Alexandra Brodsky: That’s right.
Chris Hayes: And were one of a number of women students who brought a lawsuit under Title IV of the U.S. Civil Rights Act. Is that right?
Alexandra Brodsky: That is 85% right. A group of us filed an administrative complaint with the Department of Education under Title IV, which is sort of like a less scary lawsuit, where–
Chris Hayes: Oh, I see. Okay.
Alexandra Brodsky: Yes. Yes, yes, yes. So where you turn to the Department of Education for them to do the heavy lifting of investigating, figure out what’s happening, and then at the end if they find a legal violation they can then work with the school to get them into compliance with the law, rather than there being some kind of, you know, money damages at the end.
Chris Hayes: By the way, 85% right is a very polite way of saying, “Wrong.” (LAUGH) Okay, I appreciate–
Alexandra Brodsky: I mean, it’s the gist. It’s the gist–
Chris Hayes: “Not true.” I mean, “What you said was false, but close.” So the administrative complaint, let’s, can we just talk about what that was like for you? I mean, you’re a student. You’re not an adult out in the adult world yet and you’re doing this I think maybe kinda scary thing and filing a complaint against the school that is your school that you, you know, live in and go to school at and is the people that then give you your grades. Like, what was that experience like and what prompted it?
Alexandra Brodsky: Well, I will say, I think at 20 I thought that I was an adult out in the world. So maybe it would have been scarier if I had known I was wrong.
Chris Hayes: That’s true. I take that back actually. I think 20 is probably when the individual’s most diluted about their personal amount of power–
Alexandra Brodsky: Yes, 100%–
Chris Hayes: –and agency in the world. (LAUGHTER) So actually you’re totally right. I retract that.
Alexandra Brodsky: 100%. I can almost legally drink. This is my moment. In school I started in 2008. And that was wave, you know, 12 of student organizing after coeducation at Yale around issues of sexual harassment. So one of the landmark Title IV lawsuits that established that Title IV required schools to address sexual harassment actually was a lawsuit against Yale.
And then, you know, year after year students would push the school to do better. There would be lots of meetings and town halls and holding hands. The school would promise to do better and then nothing would really happen. And there were a number of really high-profile instances of sexual harassment.
You might remember the, “No means yes,” chant that made headlines I guess my freshman year outside my dorm. This is fraternities going around chanting, “No, means yes. Yes means anal,” as a hazing mechanism. And so I think the place where we came was petitions and protests weren’t doing the job and so we needed backup to get the school to finally start taking sexual harassment seriously.
And for, you know, all of my cynicism about the law now that I’m a lawyer, at the moment it was incredibly powerful to say, “Oh, there’s this logic of the law. There are powerful people in D.C. who are willing theoretically to have our backs and come in and investigate and yell at the school.” And it worked in large part. You know, there were still significant problems with the school’s policies after I was gone, but they were far better than when I started.
Chris Hayes: So a few things here. One is I wanna just be clear here because it’s a technical point you make in the beginning of the book. You use the term sexual harassment in a sort of technical legal way that’s more capacious than I think people’s understanding of it in normal usage. When you say sexual harassment, which you’ve now used a few times, just explain what that means in the context that you’re gonna use it.
Alexandra Brodsky: Yes, absolutely. So you’re right. I think that most people, when they hear sexual harassment, they think about comments or someone asking their subordinate out on a date and as sort of as excluding physical violence. You know, my day job is as a civil rights lawyer.
I do a lot of sexual and racial harassment cases. And harassment in that context includes physical violence. And it’s this catch-all term to talk about a range of harms that come in, you know, different forms but have the same effect in keeping people from engaging fully in the workplace of in school, wherever they are, and then accrue to real systemic inequality.
And so I had a lotta trouble in figuring out vocabulary for the book. Because we don’t have really good terms to encompass all these different kinds of harms in popular discourse. So I ended up using the legal term that I’m comfortable with and I think does the job.
Chris Hayes: Right. So just when people hear that term it can mean sexual assault, I mean, as part–
Alexandra Brodsky: Yes–
Chris Hayes: –of the category. It can mean rape. I mean, it can mean very, very serious forms of sexual violence that are all encompassed in this category of the kinds of sort of transgressions that might take place in a place like a campus that produce an atmosphere that create systematic gender inequality, which brings us to Title IV. So can you just explain what Title IV is, what its significance is, and why it was a vehicle to address the grievance?
Alexandra Brodsky: Sure. So Title IV is a civil rights law that prohibits sex discrimination in education. You know, when I started school all I knew was that it vaguely had something to do with equity in athletics. But for decades now courts have recognized that Title IV requires schools to address sexual harassment of students and staff.
Because, you know, there’s sort of the technical legal reason why sexual harassment is sex discrimination, but just on a really intuitive level we can imagine that having to share, you know, a library with the classmate who raped you is going to make it really hard to study.
You know, trying to learn math from a teacher who’s abusing you is going to make it really hard to figure out how to do long division. And so Title IV requires schools to take responses to ameliorate those harms. And I think it’s really important to note that this is not a criminal statute.
So Title IV isn’t a sort of replication of the criminal law on school campuses for purely punitive reasons. Instead, the focus is, “What do survivors of sexual harassment need to continue to learn? How do we bring that civil rights lens to this issue, which is so often thought of as a criminal harm?”
Chris Hayes: Right. So just to reiterate this, ’cause I think it’s important for people to kinda understand this framework before we go further, Civil Rights Act Title IV is around gender equality, right?
Alexandra Brodsky: Yes. It’s specifically sex discrimination in education, yeah–
Chris Hayes: Right. Sex discrimination in education. And basically it says, “Look, you have a right to fair and equitable treatment and nondiscrimination in education.” And the sort of theory of law that’s developed here, which I believe is totally sound, as you spell out, is in a place in which sexual harassment in the broad sense is common or unpunished or un-dealt with, you will produce an environment that systematically robs women of their right to a fair and equitable educational space because they can’t do the things that men can do– under those conditions.
And there have been lawsuits and complaints brought under this theory and this section of the law, saying, “Look, you have to do something in a systematic fashion to address this issue or you’re failing to provide equitable education to people of all genders at your institution,” right?
Alexandra Brodsky: Yes, that’s absolutely right. And the only thing I would add is that Title IV, like the employment discrimination laws that protect against workplace harassment, a provide protections for men and people of other genders who are sexually harassed.
Chris Hayes: Right. I mean, this is interesting to me though actually because this is actually a place where I think things get fascinatingly fraught or they get pulled at. Like, one of the things that you’re at pains to talk about in the book, and I think rightly, is that, like, sexual harassment can happen to anyone in any gender expression.
It can happen to cis men. It can happen to trans folks. It can happen to gender nonconforming people. Obviously all of those people can be victims or survivors of sexual assault, sexual harm, right? That’s a principle and I agree with it.
But and also it’s the case (LAUGH) that most of what’s happening is men harassing women and also that’s the place where the kind of connective tissue is between this legal theory about sex discrimination happens. It can’t fully be gender-blind and still be functioning along the lines of a conception of sex discrimination, right?
Alexandra Brodsky: I think that there’s both a technical answer to this and the– sort of legal realist answer to this of what was actually going on in the court. So one thing that’s interesting and a little frustrating is that when the Supreme Court in the ’80s held that sexual harassment is a form of sex discrimination they didn’t actually say why.
It was just incredibly obvious to them. And there are a lot of different sort of explanations among feminist theorists, among people who are fully on board with the fact that sexual harassment is sex discrimination. There’s disagreement about why that is.
Chris Hayes: Huh.
Alexandra Brodsky: And there are some kind of I think overly-simplistic explanations that go like this. “My boss only sexually harassed me because I was a woman. If I were a man he would not have sexually harassed me. Therefore this is sex discrimination.”
Alexandra Brodsky: I think that that’s overly-simplistic in part because of this very silly hypothetical called the bisexual harasser, which is literally the defense that Cuomo just used, (LAUGH) I have to say, which is, “You know, if I’m attracted to everyone and I sexually harass everyone is it now not sex discrimination?”
Chris Hayes: Wait. Wait. Whoa, whoa. What? I’m gonna hit pause. That is, like, a standing trope in this area of law, is the thought experiment of the bisexual harasser?
Alexandra Brodsky: Yeah. So, I mean, you know, it’s (LAUGHTER) offensive. So I think that this was the hypo that people were coming up with to try to push back on the idea of sexual harassment as sex discrimination.
Chris Hayes: Okay. So the sort of simplest way of understanding why sexual harassment is sexual discrimination is, “I am a woman. But for my womanness, I would not have been subject to my boss’s harassment, ergo the kind of ‘but for’ causal mechanism for my harassment is my womanness and therefore it’s discrimination.”
Then comes the bisexual. (LAUGH) I shouldn’t laugh because obviously, like, it’s not funny and there are people who do harass men and women. But it’s just kind of a sort of absurd joke. But the bisexual harasser says, “Well, don’t worry. I’m a boss who’s an equal opposite harasser, harassing everyone, ergo it can’t be sex discrimination.”
Alexandra Brodsky: Right. And so I think that a richer understanding of why sexual harassment is sex discrimination that avoids this problem, and I think is also just true, is actually just right, and I talk about this in the book, relying primarily on Katherine Franke’s work, she’s a law professional at Columbia, who talks about the ways in which sexual harassment is both based in sex stereotypes and then serves to replicate sex stereotypes.
So here’s another way to put it. And we can imagine it’s the ’70s and a woman comes into the office and she’s the first woman ever to be there. And so even though she has the same job description as a bunch of men in the office, people really can’t imagine her as a worker first.
She is first and foremost a sex object. And so when they are harassing her it is based on their view of why women exist, why woman are at work. And then we can also see how this plays out in other kinds of harassment, including against men, who might be perceived as insufficiently masculine.
And there are a bunch of cases like this, where then even straight coworkers will sexually harass (or ostensibly straight coworkers, I guess that’s not really proven up in the cases), will harass a male coworker for not being macho enough. And it’s not because in any kind of clear way they’re trying to get in his pants. It’s because they’re putting him in his place and then keeping him there.
Chris Hayes: Right. Right. And all of that plays a role of robbing the person who’s on the receiving end of it of, like, a full and equitable chance to flourish and be who they are as we both have (UNINTEL) commitments to and as the law says they do as well.
Alexandra Brodsky: 100%. But to your earlier point, and to sort of the legal realist observation, I think it is obviously true that, you know, I don’t know that the Supreme Court had a really rich understanding of the sex stereotyping function of sexual harassment in the ’80s. I think a lot of it was them just saying, “This is a problem of men doing this to women. And that is mostly true. That is largely true.
Chris Hayes: Right. I mean, I guess I’m also pointing to, like, what I think is actually a deeper, like, interesting conceptual and intellectual tension between a transition from a model of feminism, feminist law that was rooted in a theory of gender and a sort of reality of how gender exists that is in very rapid transition right now. (LAUGH)
And so I don’t think, like, 30 years ago people were thinking about like, “Well, where do gender nonconforming folks,” well, I mean, obviously some people are. There are gender nonconforming folks and gender nonconforming theorists. But in the kind of mainstream, particularly with, like, old dude judges, right, like, thinking (LAUGH) about, like, the evolution of our, both theoretical understanding of gender, and it actually as a lived experience in life, has changed in the time from which some of the kind of tent poles of the law and the theory of the law have changed. And I can see if you writing, like, working through some of that because it’s not simple or clear-cut, I guess is my point.
Alexandra Brodsky: I think that that’s right. And I wanna give the feminist theorist credit that I think they were thinking about this in complex ways. But you’re right that that does not mean that, you know–
Chris Hayes: The law is–
Alexandra Brodsky: That the law was, that the law was expressing that nuance.
Chris Hayes: So let’s go back. So what is the complaint that you, as an undergrad, as part of, the administrative complaint? Like, what are you saying that Yale is doing wrong? And what is the thing that they have to do to make it right?
Alexandra Brodsky: So we laid out problems with how the school was responding, both to the big public instances of sexual harassment that seem to happen every year like clockwork, and also private reports that students were making around sexual assault, stalking, and similar harms.
So this complaint was filed in 2011, which is 10 years ago and honestly a different world than college students live in now. And I don’t wanna minimize the extent to which there are still serious obstacles, including some new obstacles thanks to bad regulations from the Trump administration, but, you know, my school didn’t have a Title IV coordinator in 2011, which is the most obvious box to check now for any college administration.
Things have just really changed. But, you know, we were talking about how hard it was for people to report, that, you know, if you looked on the school website you couldn’t even figure out who the right person to turn to was, and that the school’s response was really a pattern of minimization and getting people to kind of slink off quietly. That wasn’t serving anyone. And the Department of Education forced some pretty serious policy change in the year following that complaint.
Chris Hayes: And those policy changes are not just Yale. I mean, they do happen at Yale, but to your point here, I mean, one of the things that happens over the period between, say, 2011 and 2016 or 2017, right, is through this instrument of Department of Education regulation under Title IV there are big changes made to the way that campuses deal with sexual harassment on campus. Like, describe what those look like, how that happens.
Alexandra Brodsky: Sure. So I think the story’s actually a little complicated. Because there’s a public narrative, which is in 2011 President Obama personally decided that Title IV concerned sexual assault on college campuses and put out all of these new policies and that changed the way that colleges acted.
And that’s not quite right. You know, as we talked about, this law had been on the books for a long time. The Department of Education had, since the ’90s, put out a series of policy guidances about how schools need to address harassment based on race, sex, and disability.
But let’s be honest, schools were just ignoring that. And students certainly didn’t have access to that information, you know. It was out there somewhere but no one knew to look for it. And one of the things when I was working with organizers at other schools that was sort of a common thread that we found was that everyone found out about their legal rights too late.
Everyone found out that they were protected under Title IV and what their school owed them a year, you know, after they were in the room reporting or, you know, trying to figure out if they could report in the first place. And I think what was new from the Obama administration is they put out two policy guidances, which are sort of letters to regulated entities explaining their view of the law.
And what was in those letters wasn’t particularly novel, but it was clear, it was forceful, and it was accompanied by a lot of reporting and student activism and public pressure so that schools were paying attention now. And the question is, “What were schools gonna do with that information?”
And I think that some of what they did with that information was great. They had more dedicated staff. They had clearer policies. There were more supportive measures for people who experienced sexual harassment. I also think that in their rush to comply to a law that they had been ignoring for decades, some schools instituted sloppy disciplinary procedures. And that was a shame because it created fertile ground for a backlash that viewed Title IV itself as the enemy.
Chris Hayes: So that brings us to the sort of next part of the story, which is there is a backlash. And the backlash is interesting because, you know, you will find the backlash in The National Review and conservative publications and places you might expect but not just that.
I mean, I think there were some tricky questions about what the rights of the accused should be, for instance. Some pretty bad stories of Star Chamber-esque (LAUGH) kind of forms of secret justice or of people being suspended or receiving discipline without ever being informed of what the accusation was, which sort of violates some pretty fundamental procedural intuitions we have about fair process. Like, how do you understand the backlash? How much of it was true? And where did things, like, shake out after, like, you know, in the Trump Administration and where we are now?
Alexandra Brodsky: Sure. So it seems entirely uncontroversial to me that some schools in deciding to address sexual harassment for the first time used sloppy procedures or were otherwise unfair to people accused of these harms. I don’t think anyone should be surprised by that, in part because so often student discipline is messy.
So often student discipline lacks the kind of procedural protections that so many assume would go along with that. So there were a ton of people who were shocked, for example, to learn that students accused of sexual assault weren’t given the right to cross-examine their victim in student discipline.
But that wasn’t a quirk about sexual assault. That wasn’t a policy dictated by Title IV. That was because those students at that school didn’t have the right to cross-examine for any kind of offense because, you know, they’re at a private school and their state law doesn’t provide for that kind of protection.
And so I think a lot of what people were discovering for the first time was that students are less protected in student discipline than many of us assume, and again, not specific to these kinds of harms, but just in general. But they were seeing it come up in the context of sexual harassment and so thought, “The problem must be Title IV. The problem must be what the Obama administration has done with these letters.”
And what I have struggled with (yeah, I struggled with this as an organizer, I struggle with it now as an attorney still working on these issues), is there are people who are asking these questions in good faith, where you sit down with them and they say, “I don’t like my school’s policy. I’ve written an op-ed publicly talking about how I don’t like my school’s policy, and I think that the problem is Title IV,” and you say, “Okay, what don’t you like about the policy?”
And there are four things, easy fixes. And you say, “I completely agree. Your school’s policy should be tweaked in exactly the ways you say. That’s entirely consistent with protections for survivors. Those changes will actually help survivors. Great, we all agree.”
And then you have people, including some well funded, Koch-backed nonprofits on the right who are hostile to the idea of schools having any role in addressing sexual harassment at all. Their real goal is just to funnel all of these allegations to the criminal justice system and get schools out of the project all together.
And they were able to latch onto the sort of stories that you mention to say, “See? Schools aren’t up to the task. Let’s take down Title IV entirely.” And it’s been hard sometimes to figure out who can you have a conversation with, who can you find common ground with, who is trying to get it right, and who is thrilled for the opportunity to take this whole civil rights regime down?
Chris Hayes: Part of what I think is both fascinating and maddening about this is that, like, you can very quickly get into technical questions and then there’s a lot of details. And a lot of the details, in lots of different directions, can be horrible.
The details of people’s sexual assault at school, the details of what happens to, say, a female student who is sexually assaulted and then spirals out and is forced to leave the school, and, like, obviously there’s, like, two compounded injustices in this individual’s cases.
And there are thousands and thousands and thousands of these cases. These are, you know, people who are, you know, sexually assaulted and then the knock-on effect of an institution that does not do anything about it and then they leave school and now have these compounded harms, right?
And then there are these horror stories that will pop up, often sometimes in conservative media, but not exclusively, of people being railroaded or accusations that turned out not to be true or incomplete. And I don’t wanna say that those two things happen in equal numbers, because they don’t.
The first example is something I think empirically happens at orders of magnitude more than the second. But you get both of these examples. And yet, like, to me I guess I kind of, and in reading your book I felt this too, ’cause you do talk about this a little bit, but, like, I wanna, like, take a step back to, like, the, like, the most basic Socratic question of, like, okay, what is a just process for adjudicating an allegation of sexual harassment, in the broad sense?
Like, what do our intuitions tell us? What do we want that to be? (LAUGH) Like, how do we balance these competing interests? ‘Cause, like, the fundamental question is not an easy or obvious one. And in some ways, the lack of ease or obviousness to the fundamental question I think is actually what creates a lot of the downstream controversy, along with, like, the enduring grinding power of the patriarchy. (LAUGH) So I guess, like, how should we think about that first Socratic question of, like, what is justice in this realm?
Alexandra Brodsky: So I think that that question is hard but also not as hard as it seems because institutions address misconduct between their members, between workers, between students all the time, you know, nonsexual harms. It happens all the time. Schools have procedures for when one student punches another student in the face or when a frat is found to be hazing freshman–
Chris Hayes: Or someone steals someone’s laptop. I mean, there’s, like, a million things–
Alexandra Brodsky: Yes–
Chris Hayes: –that happen. (LAUGH)
Alexandra Brodsky: A million things. A million things. You would honestly think sometimes, from public reporting around Title IV, that no one had ever been expelled from school before until the Dear Colleague letter in 2011 and, you know, now only for rape.
And so the question to me is, you know, not what is a fair procedure for sexual assault, but what is a fair procedure for investigating serious misconduct between two people that threatens, you know, the alleged victim’s ability to participate in the community and where the stakes might be something like suspension, termination, expulsion for a student or worker?
And then we already have models. And I’m not gonna pretend that those models, as they stand now, are always perfect, either in the workplace or in schools, but we have a foundation there. And there are these basic principles, which even when the Constitution doesn’t technically apply because we’re talking about a private entity that doesn’t have due process obligations, as a legal matter there are these basic principles from our due process law that can tell us what are the tenets of fairness.
And that’s everyone should have the right to tell their side of the story. The person who’s accused should know exactly what they’re being accused of. Everyone should have the chance to present evidence, including witnesses. The decision-makers should be impartial.
And then the question is, you know, what’s the context? What are the potential stakes? What resources are available? And we can build up from that basics, bare bones procedure, fill in the gaps, give it meat. But we don’t have to reinvent the wheel here. And I think that some of the really bad procedures that we’ve seen develop through this backlash as bad in part because they are starting from zero and developing procedures for sexual assault in a silo.
Chris Hayes: Wait. But just to play Devil’s (LAUGH) Advocate here about reinventing the wheel, like, you are very clear in the book, and I think in a good way, about, like, the shortcomings of the criminal justice system for dealing with these harms and the reason that people don’t go to it.
But that’s, like, the canonical version we have, right? So, like, when you talk about like, “Well, the Constitution doesn’t apply,” and obviously the civil law too because we’re looking at it through this discrimination framework. When we’re talking process rights of the accused, right, we’re talking about things that flow from either common law or the U.S. Constitution.
And, you know, I think you can make the argument that the big system we have for dealing with these harms, these specific kinds of harms, is completely nonfunctional and is terrible and doesn’t actually offer justice. And in 99% of cases there’s nothing, basically.
Everyone has seen the statistics about, like, the funneling that happens, what percentage of sexual assaults are reported, tiny fraction, what percentage result in arrest, tiny frac– you know, all the way down the line. And then of course then you’re dealing with the criminal justice system, which itself is, like, gruesome and Gothic and racist and, you know, tyrannical in many ways and, you know. I don’t know. I’m asking this question, and you’re like, “Well, there’s lots of procedures and people have ’em. They use ’em all the time.” But it’s like, “Ah, color me skeptical they work that well.” (LAUGH)
Alexandra Brodsky: Oh, sure. So I don’t think that the criminal justice system is our model here. I actually think it’s always a recipe for disaster when private institutions try to set up trial-like procedures, and again, for workplaces, schools, for discipline of any kind, not just for sexual harms.
It’s a bad fit. I think that it actually just ends up sort of re-traumatizing everyone without actually being more truth-seeking. My point about there being models is any school, any workplace is already going to have some kind of procedure for what they do.
And so let’s start there and we can say, “Is this good enough? What else can we add on? What other protections do we need? What other opportunities do we need? Are there safeguards that we need to make sure that this process can handle particularly sensitive allegations, which could include sexual harassment but could also include harassment based on race or disability or religion, could also include just, you know, other things that are upsetting, even though they don’t implicate civil rights law.
And I have ideas about the kind of models that I think are most effective. I think that there’s actually a fair amount of consensus around some of these really nitty gritty policy questions. But I do think it is true that we underestimate sort of what material we have to start off with when we’re asking these questions.
Chris Hayes: Yeah. That’s a great point. I guess I just think, like, again, (LAUGH) I don’t know why, I don’t mean to be a cynic, but I guess I’m real skeptical of, like, school and employer disciplinary (LAUGH) procedures. Like, those seem sort of, like, ominous and crappy to me just in the small times that I’ve ever interacted with them.
And again, maybe I’m being overly-dismissive. I have read your book and, like, I’ve learned a lot from your book about the fact that, like, there are very, like, sophisticated and developed procedures. So maybe that sort of visceral feeling I have should go away, but I’m just like, “(GROAN) Like, Yale? Do I want Yale litigating this? Like, I don’t know.” (LAUGHTER)
Alexandra Brodsky: I mean, here’s what I will say. A lot of them are awful. A lot of my practice as a lawyer is representing students who either have been victims or race or sex-based harassment or have been subject to discriminatory discipline procedures. If schools were doing a great job with–
Chris Hayes: Right–
Alexandra Brodsky: –discipline–
Chris Hayes: You would be out of work.
Alexandra Brodsky: I would be out of work. I’d be doing something else with my life. So I’m keenly aware of that. But I think both that there is, you know, room for improvement, that there’s a lot of low-hanging fruit, that a lot of schools and workplaces have just started to ask these questions.
I mean, how many workplaces did not have a sexual harassment policy seven years ago and do now? And so I’m not saying that we should be patient with them but just it is not surprising that those might be bad now and they could be better later. And then I think there’s also just the ultimate question, which is, “Well, what would we do in the absence of those responses?” Why would it be better to say that workplaces no longer have to address sexual harassment at all, when we know that survivors just don’t have other options? And I– I just can’t sign up for that kind of abdication of responsibility.
Chris Hayes: This is a great point, right, which is it’s like the Winston Churchill thing about, you know, democracy being, you know, the worst form of government except for all the others. It’s, like, right, like, the Yale disciplinary prosecutor or, like, the HR complaint process is, like, the worst form of justice except for every other alternative (LAUGH) in that moment.
And, like, it’s sort of what we have. It’s the process we can do. You talk about low-hanging fruit. I wanna talk about what that low-hanging fruit is, what happened when the Obama administration sent that letter out, what changes happened, and how the Trump administration tried to roll that back right after we take this quick break.
Chris Hayes: All right so let’s talk about you mentioned low-hanging fruit. Like, what are some examples of, like, simple clear things that institutions should be doing or thinking about when they’re thinking about a process for addressing sexual harassment.
Alexandra Brodsky: Sure. Some of this will depend on the ages of the people that we’re talking about. I think that a workplace sexual harassment is inevitably going to look different than an elementary school’s procedure. But I think that, you know, making sure that it is clear who people need to report to, assigning everyone involved in an investigation some kind of advocate who can be a teacher.
It doesn’t have to be an outside lawyer, which can be too expensive for schools, but just someone to guide them through the process. Making sure that they have the chance to tell their side of the story. If we’re talking about adults I think some kind of hearing is a good idea.
Though that can happen, I don’t think it generally should involve direct confrontation between the parties, where you have someone accused of rape directly questioning the person that they are alleged to have raped. I think that that is a terrible idea.
But there are good inquisitorial models that frankly just look a lot like courts in much of Europe, where basically there’s a neutral panel that can question the parties, can receive questions to direct to witnesses. And it’s a sort of more civilized version of cross-examination. I think that having an appeal is a good idea, if possible. You know, I think that a lot of colleges and universities already have something that looks like this. I think actually workplaces are further behind if we’re talking about–
Chris Hayes: Oh, totally–
Alexandra Brodsky: –private workplaces that aren’t unionized, where because of at-will employment, where most workers are not protected at all, can be fired at any point for any reason, because they wear the wrong color shirt, a lot of workplaces haven’t actually invested in good procedures that are fair to everyone. And so that’s a place where having, you know, union support can make a lot of difference.
Chris Hayes: That’s a great point.
Alexandra Brodsky: And, you know, so I think that that’s all doable. So what I think happened under the Obama administration is that schools, not because they were required to by the administration but because they kind of got sudden signals and went along with it, decided to have these really uniquely non-adversarial procedures, where there were, and again, this is not all schools, but some schools decided to have, you know, let’s say if they used a hearing model for non-sexual student discipline, removed that hearing for cases of sexual assault because it seemed trauma-informed, et cetera, et cetera.
And I understand where they were coming from, but I think that that ultimately hurt survivors. Because what it did is make student discipline for sexual assault seem uniquely suspect and invited this backlash that then returned us to the historical trend, which is particularly onerous procedures for allegations of sexual assault. So Betsy DeVos comes in, Secretary of Education under Trump–
Chris Hayes: Just before you get to Betsy DeVos, right, so the letter goes out in 2011. Schools respond (some in salutary ways, some in maybe self-destructive ways or sort of not great ways), across the spectrum. But everyone starts taking it more seriously, I think it’s fair to say? Or that’s an over-broad generalization, but in the main it does, like, do a little butt-kicking to the schools, (LAUGH) right? I mean, like, it does have the effect of like, “Y’all need to be serious about this.”
Alexandra Brodsky: I think that that’s right. I think that’s more right on the higher ed level. I think most of my cases are K-12, and that is still truly the Wild West. But for colleges and universities, yes. I think that there were a lot of schools for the first time sat down and said, “Okay, what are we doing about sexual assault. You know, we should have someone whose job it is to figure this out.”
Chris Hayes: And then a backlash grows and there’s a big movement, you know, in that backlash, and Betsy DeVos comes in, sort of informed by and sympathetic to that backlash, saying I think from the beginning like, “We’re gonna change this.”
Alexandra Brodsky: Yes, 100%. And so she comes in and promulgates these new regulations, which are binding, which are stickier than the letters that the Obama administration had sent out. They do two main things. So the thing that doesn’t get talked about enough, which I think has been left out of a lot of reporting, is that it lowered school’s responsibilities towards survivors in ways that had nothing to do with discipline at all.
So it changed the definition of sexual harassment, such that schools had to respond to only the worst of the worst. It placed geographic limitations, so that if a student is raped across the street from school by a classmate, walks into school and has to sit next to that person in science class, the school now has no legal responsibility to do anything about that, these kinds of changes, which again, have nothing to do with process at all.
You know, they don’t help accused students, other than by making sure that there is no accountability. And then the other bucket, which has gotten more attention, is that DeVos imposed extraordinarily onerous procedural requirements, particularly for higher education just for allegations of sexual harassment.
So to give you an example, the rules require a particularly adversarial form of cross-examination that goes beyond what almost every court in the country has said is constitutionally required at a public school. So what that means is that there are many, many schools now where students who report sexual assault are up against far more serious obstacles to proving what happened to them than a student who has experienced any other kind of harm.
And undoubtedly, across the country students accused of sexual assault have far greater rights, far greater protections than students accused of anything else. And that really kills me because we can have a debate about, we must have a debate about, what student discipline should look like.
We should have a debate about where current gaps are in the law for protecting students who face serious discipline. But there is no reason to have different rights for people accused of sexual harms compared to all the other bad things that people do to one another.
Chris Hayes: I don’t think that had quite sunk into me. And the other thing that’s important here is there’s an asymmetry between what the Obama administration does, which is send that letter, but doesn’t promulgate binding, like, they basically say, “The law controls on this and you should be complying with the law, (LAUGH) and wink, wink, nudge, nudge, like a lot of you have not been.”
But they didn’t say like, “It has to be the case that the person making accusation doesn’t have, whatever the procedural– like, the DeVos regulatory promulgation was more specific and more binding than essentially the kind of, like, butt-kicking guidance that the Obama administration sent.”
Alexandra Brodsky: Absolutely. I apologize that it is basically impossible to talk about this without sounding incredibly wonky, but the letters that the Obama administration sent out did not dictate any particular kind of disciplinary process. They entirely just reflected what the department had done or said in the past, including during, you know, the Bush administration and in parallel to the same standards for race and disability harassment.
And because the courts and the Department of Education have historically been very deferential to schools in allowing them to design disciplinary procedures that worked for them. And we can debate whether that is overall a good thing or not, but that has been the trend.
But then you get DeVos coming in and saying, you know, “These are the number of days that have to, you know, lapse between step one and step two of this incredibly detailed process. Here are ridiculous evidentiary rules that you need to follow down to the T, but only for these particular kinds of harms.”
And I really think that some of what DeVos did honestly just makes zero sense, just absolutely zero sense, doesn’t reflect how any kind of proceeding works anywhere in the world. And I think if we hadn’t just been talking about sexual harms that would’ve been abundantly clear to everyone involved.
And it’s only because we have this sense that allegations of sexual assault are, “It is a mystery for how to address them. This is the most complicated issue ever. Essentially, we need a criminal trial to run every single time an allegation like this is made in any context,” that I think that policy-makers were open to these rules.
Chris Hayes: I mean, there’s a strong theme I think in what you’re saying, and this comes from the book, which is like, “This is a harm. And it’s a harm as a sub-category of other kinds of harms. I mean, there are lots of different ways that people harm each other.
And this is a harm, and we should think about it in those terms and not as a mystical and sui generis form of transgression, that really who can say, (LAUGH) like, what has to happen? And instead we should have broad procedures for dealing with harms, and this should fit in those procedures.
Alexandra Brodsky: Yes, 100%. And I sometimes get a little bit of pushback to that from people, feminists, who are worried–
Chris Hayes: I was gonna push back. (LAUGH) So go ahead.
Alexandra Brodsky: Great. Maybe this was what you were gonna say. So the pushback that I get is, “People experience sexual harms in ways that are unlike being punched in the face. You know, so why not single them out?” But, you know, step one, I think that that is generally true that many people find sexual abuse to be destructive and upsetting in ways that other kinds of physical abuse aren’t.
But that’s not universally true. I don’t think that that’s every survivor’s experience. But also even if we recognize that there is something special about the harm of sexual violence we still don’t need special procedures. I mean, if we look at the legal system, which again, this is not to say that, you know, the criminal law is doing everything right, but just as a reference point, I talk in the book about OJ Simpson.
So OJ Simpson, accused of murdering two people. He goes through a criminal trial, which uses the same procedures that would be used for a criminal trial if he had committed, you know, fraud, if he had done any number of crimes that are not as bad as murdering people. He’s acquitted.
He then goes to the civil trial, where he is subject to a different kind of procedure, which is the same as the procedure that’s used for every kind of civil offense, including things that are much less serious than murdering people. Because we scale the appropriate procedures based on the stakes for the accused, based on the interest, not based on the particular kind of harm alleged, which honestly would just be a recipe for biases.
We can see how when the law historically has singled out sexual assault for special harms it’s been entirely to the detriment of victims. So for centuries there were special evidentiary rules, where rape victims had to provide special kinds of corroboration for their claims that no one else had to.
There were particularly short statutes of limitations just for these harms. And the justification for that was quite explicitly sexism. This was not subtext. It was text. It was, “We’re worried that women will be mad you didn’t call them the next day or they got pregnant and so now they’re accusing you of rape.”
And a great way to avoid those kind of biases is to say, “We’re just gonna have one kind of process for everyone facing prison or financial penalties or termination from their job,” and move from there, rather than trying to figure out each offense separately.
Chris Hayes: Right. So the way that I was gonna push back is different than that, rather than the sort of specificity of the harm, which I don’t have subjective access to myself because I’ve not been harmed in that way, although I know lots of people in my life who have. (SIGH)
It just seems to me, like, there’s a little bit of tension between the idea that, like, “This is a sub-category of harm and we should include it in procedures we have for dealing with harm and transgression,” and the idea that, “This is a sub-category of harm that actually in a systematic fashion is producing a civil rights violation.”
Like, if there was an outbreak of laptop stealing on Yale campus that would probably, like, really get everyone angry and annoyed, (LAUGH) if everyone’s devices were being stolen all the time, but there wouldn’t be a civil rights claim. Like, there’s no– there’s actually no discrimination embedded in that.
And I think, like, there is something different about this harm because of that. Because of the systematic nature of it, because of the fact it’s embedded in patriarchy, because it’s in fact embedded in sex stereotyping and sex discrimination that, like, it is distinct in some ways.
I mean, I hear what you’re saying is that we shouldn’t think of it as distinct in a procedural sense, but obviously in a policy sense we all recognize that it is and in some ways that’s the issue. And what you’re saying is the way to respond to that is inclusion of this set of harms in the disciplinary procedures to be taken seriously, as opposed to ex nihilo creating some special sex harassment court.
Alexandra Brodsky: Yes. That seems right. I mean, I obviously agree that these harms are particularly concerning. I don’t represent victims of laptop–
Chris Hayes: No, obviously–
Alexandra Brodsky: –stealing–
Chris Hayes: Yes. Yes, obvious–
Alexandra Brodsky: –for a living. That would be a niche practice. But, you know, yeah. And I think it’s also worth noting that sexual harassment is not the only kind of issue that arises in workplaces or schools that implicates the civil rights of other people. So–
Chris Hayes: No–
Alexandra Brodsky: And there’s harassment based on race and disability and other identities. There is, you know, I guess straight discrimination that does not come in the form of harassment, you know, equal pay concerns, that kind of things. And we don’t have unique procedures in workplaces or schools for racial harassment.
The schools and workplaces deal with those as they deal with other kinds of harm between people. And again, none of this is to say that they’re doing a good enough job right now, again, particularly in workplaces where no one has any protections of any kind to their job, where, you know, no one has invested in a real investigatory infrastructure.
And so, you know, I’m not Pollyanna-ish. I think that part of incorporating these civil rights harms into a general disciplinary framework is making sure that general disciplinary framework is up to the task, making sure that it can handle these sensitive allegations.
But I think they can. And that’s gonna accrue to everyone’s benefit. So I talk a little bit in the book about right before I enrolled in school there was a student whose roommate repeatedly threatened to murder him. And I am sure that that person would also appreciate being questioned in a sensitive manner by a disciplinarian. So it’s not as though these are the only harms that require a light touch.
Chris Hayes: What’s gonna happen now? Is the Department of Education gonna rescind the DeVos regulations?
Alexandra Brodsky: That is a great question. Biden, for various reasons, some noble, some questionable, has been a big champion of Title IV and its protections for student survivors and was very involved in these efforts when he was vice president. And his Department of Education has indicated that they plan to do something with these regulations in May of 2022.
Now I don’t know what that’s gonna be. I don’t know if it’s gonna be enough. I will also say that one thing I’m really worried about is that all we need is for the state of Texas to bring a suit in one of these districts where there are two judges and they were both appointed by Trump and they will enjoin literally anything the Biden administration tries to do.
Chris Hayes: I mean, I’m talking to you the day after the Supreme Court has 6-3, thanks to some district court judge, essentially ordered the administration to ex nihilo start a discontinued terrible immigration (LAUGH) policy from the Trump administration–
Alexandra Brodsky: Yes. No, I mean, but it’s gonna be that judge.
Chris Hayes: It literally–
Alexandra Brodsky: Two years–
Chris Hayes: –will be that–
Alexandra Brodsky: –from now–
Chris Hayes: –judge, yes.
Alexandra Brodsky: Yeah. And I really worry. Let me say this: I would love to see the Biden administration move more quickly ’cause I do think these rules are doing a lot of harm. Because again, it’s not just process. It’s also these questions about the definition of sexual harassment and the liability standards that schools are subject to.
I would love to see them move quickly. I also know that they have to do a really good job because they are going to face legal challenges left and right. And we need these rules to stick. It can’t be that every four years there’s a new president and–
Chris Hayes: No–
Alexandra Brodsky: –there’s a whole new legal regime.
Chris Hayes: Alexandra Brodsky is currently the Kazan Budd Staff Attorney at Public Justice, author of the new book, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash. (MUSIC) It is out right now. She litigates cases concerning civil rights abuses in schools and in the criminal legal system with the Public Justice’s Students’ Civil Rights Project and Debtors’ Prison Project. Alexandra, congrats on the book. Thanks so much.
Alexandra Brodsky: Thank you.
Chris Hayes: Once again my thanks to author and civil rights attorney Alexandra Brodsky. Her book, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash is out now. “Why is This Happening?” is presented by MSNBC and NBC News, produced by the All In team, and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to NBCNews.com/whyisthishappening.
Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by the “All In” team and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.