It did not take a New Haven jury long in March of 2017 to acquit Saifullah Khan of the raping a classmate at Yale University one Halloween night. His accuser took the stand, told her story to the jury, was cross-examined and spent the better part of three days on the witness stand.
“Not guilty,” the jury said. In interviews with the press thereafter, jurors made it sound as though this was not a close case. Khan’s accuser wasn’t credible.
That didn’t stop Yale from expelling Mr. Khan over the incident. Yale notified Mr. Khan in a brief letter emailed this afternoon (January 2, 2019) that the university sides with his accuser.
Just how did this happen?
One answer might me that different fact-finders applied different standards of proof. In the criminal case, jurors were asked to determine whether the state could prove Mr. Khan took advantage of drunken classmate in October 2015. In a civil case, a lesser standard of proof was applicable. Fact-finders could reach different conclusions applying different standards. That’s a logical possibility.
But there is another, more compelling possibility – Mr. Khan was afforded due process at his criminal trial, but deprived a meaningful right to defend himself at the university’s tribunal.
I tried both the criminal case and was a silent witness to the university fact-finding process. There’s no doubt in my mind that the process Yale used to engage in its fact-finding was fatally flawed.
Mr. Khan’s accuser was not required to attend the Yale hearing -- the "fact finders" never met her. She used Skype to give her testimony at Yale. In the criminal trial, she sat in open court and testified. In New Haven she dialed it in. Mr. Khan wasn’t even permitted to be in the same room when his accuser gave her statement. He was shuffled to a side room and offered a chance to listen to what she had to say over an intercom.
Mr. Khan’s accuser was cross-examined at the criminal trial. Mr. Khan confronted her and challenged her credibility about her state of intoxication the night they made love. When she testified she stumbled as she walked across campus, be confronted her with a video that showed her smiling as the two walked arm-in-arm like young lovers on a stroll. She stammered out an unconvincing explanation for the Shakespearean sonnet she had sent him days before. She couldn’t explain why she flirted with him, or why she lied to others about what happened that night.
All that was lost on the five-member panel to hear the case under cloak of secrecy on the Yale campus. Mr. Khan could not cross-examine his accuser. She was queen for the day.
Mr. Khan was deprived of the right to counsel at Yale’s hearing. He could bring an adviser, but the adviser could not speak. I winced as I listed to panel members ask compound questions, assume facts not in evidence, and engage in the sort of fact-finding blunders lawyers and judges are trained to avoid.
You’ll have to take my word for this, of course. When Mr. Khan asked for permission to make a recording of the hearing, his request was denied. No record was taken of the proceedings. The secret proceeding lacked transparency, and, therefore accountability. It was painful watching accomplished scholars engage in star-chamber secrecy. They knew not what they were doing.
No lawyer, no cross-examination, no right to confront his accuser, no right even to make sure his accuser returned to make her case in person, no right to make a record of the proceedings. Yale’s fact-finders behaved as though the pursuit of justice were the prerogative of a secret society.
Mr. Khan will take an internal appeal at Yale, and, should that fail, he will turn to the federal courts for relief. Yale’s appeals process is limited. Mr. Khan can’t challenge the finding; he can only challenge procedural faults. He’ll likely lose the appeal and have to turn to the federal courts for relief. The good news is that the courts aren’t impressed with Title IX administrative proceedings.
In truth, Mr. Khan never had a chance at Yale once his accuser decided to make her claim. Indeed, after his acquittal in March, some 75,000 people signed a petition urging Yale to ban the “rapist” from campus. He was permitted to resume classes this Fall, but was treated like a pariah by classmates.
In November, the university pounced. A non-student claimed Mr. Khan abused him in a sadomasochistic threesome in Washington, D.C. The university suspended Mr. Khan. We were set to have a hearing on that claim next week. The Washington, D.C. police had closed its file, concluding no crime was committed. Mr. Khan submitted to a forensic interview, which concluded he was no threat to himself or others. The university did not intend to call his accuser in Washington, D.C., concluding the young man lacked credibility.
We’ve called next week’s hearing off. It’s moot now. Mr. Khan is now expelled and will have to fight his way back into Yale by way of the courts in lengthier proceedings.
New Haven jurors looked surprised at trial when they learned that Yale distributed condoms freely across campus. Two students heating sheets at night in rites of passage – why are we even in court? On the record assembled in open court last spring, a jury saw the case for what it was.
Yale couldn’t see it. After all, one student claimed to be a “survivor.” #HerToo?
It makes me want to holler: “It’s just sex stupid.” But the university wouldn’t listen. They didn’t want Mr. Khan to have a lawyer. And he was too polite to attack. He still believes in justice, and, for reasons that escape me, still wants to finish his degree at Yale.
There’s not a whole lot written about identity politics and immigration that makes much sense. From the right come claims of apocalyptic doom, with a violent caravan headed our way to rape, pillage, plunder and kill. From the left, comes the kumbaya chorus, chirping about our obligation to care for any and all who trundle across our order. In the meantime, every life matters, unless, of course, you’re a white male, in which case the best thing you can do is shut up and listen.
What’s needed is sanity.
I found some in Francis Fukuyama’s latest book, Identity: The Demand for Dignity and Recognition (2018).
Fukuyama’s thesis is simple: Folks want recognition. When they don’t get it, they become resentful. Consider the role of honor in Ancient Greece. Warriors were given special recognition for their willingness to place their lives on the line. In the Republic, Plato recognized the role of spirit, or thymos, in the class of guardians – those dedicated not to the life of reason, the world of the philosopher-kings, or to the mundane task of producing goods and services. Warriors, or guardians, are driven by a sense of honor, or recognition of their worth by others.
As readers of the Republic know, the city he imagined was merely a device for illustrating what a well-ordered soul looks like. We all crave recognition. The long arc of western civilization is the struggle to assure equal regard for all.
But a funny thing happened on the road to modernity. The distinction between inner worth and external appearance in the world that was once was tethered to a spiritual conception of life’s worth and meaning has yielded to a secular commitment to equality in the here and now. The accelerating pace of claims for equal treatment yields new and novel claims that are, frankly, wearying to behold.
We’ve taken an odd turn. We value diversity for its own sake, in part because we lack the means of distinguishing better from worse. The result is atomization of society into a series of ever smaller, and some might say, ever more bizarre tribes.
I overstate Fukuyama’s claims.
Let’s look at his own words.
Is diversity an end itself?
“[D]iversity cannot be the basis for identity in and of itself; it is like saying that our identity is to have no identity; or rather that we should get used to our having nothing in common and emphasize our narrow ethnic and racial identities instead,” he writes.
A community is more than a mere collection of individuals grazing on the commons. A community is bound together by common conceptions of right, as Cicero once said.
“[We] need … an understanding of positive virtues, not bound to particular groups, that are needed to make … democracy work,” Fukuyama states.
Where do such values come from?
Fukuyama doesn’t say. He merely makes a plea for the future. We need “citizenship and the exercise of certain virtues,” he claims. “While the United States has benefited from diversity,” he writes, “it cannot build its national identity around diversity as such. Identity has to be related to substantive ideas such as constitutionalism, the rule of law, and human equality. Americans respect these ideas; the country is justified in excluding from citizenship those who reject them.”
This is almost heady stuff. Fukuyama is playing John the Baptist; he sets a prophetic expectation without offering a glimpse of the promised land.
But his discussion is helpful, especially with regard to immigration. Somehow he cuts through the hysteria of the left and right, drawing a bead that seems true:
“What refugees are owed is sympathy, compassion, and support. Like all moral obligations, however, these obligations need to be tempered by practical considerations of scarce resources, competing priorities, and the political sustainability of a program of support.”
“No state can undertake an unlimited obligation to protect people outside its jurisdiction, and whether the world would be better off it they all tried to do so is not clear. While countries rightly feel an obligation to shelter refugees and may welcome immigrants, such obligations are potentially costly, both economically and socially, and democrats need to balance them against other priorities.”
Surprisingly, no one seems to comment on the fatal flaw in our immigration policies. We permit skilled and talented immigrants to come here from around the world, thus depleting other nations of the best their fellow citizens have to offer. Is it any wonder less talented folks clamor for a place among us? What would happen if we recognized the reality of scarce resources, and encouraged the talented tenths of the world to build a better world in their own backyard?
I watched the mid-term elections with a sense of foreboding. Where do we go from here?, I wondered. 2020 fast approaches, and with it I am sure of one thing: Another whirlwind season of political blather devoid of substance but chock full of emotion. Both the left and the right are tedious masters of tired tropes.
I urge you to read Fukuyama. There will be a tomorrow. That much is almost certain. Whether we can make it one we care to live in is the question. Francis Fukuyama warns of the excesses of identity politics severed from claims of values common to all, and he warns of a naïve sense of globalism.
What comes next?
I haven’t the faintest idea. But for the first time in a long time, I became hopeful reading Fukuyama’s book. You should read it, too.