Category: reason

By the end of the week, Congress is supposed to decide whether it will renew some federal surveillance regulations, reform them, or let them expire. Many legislators would probably prefer either to kick the can down the road with another temporary renewal or to pass a modest set of reforms. But several members of Congress are opposed to ketting the status quo continue—enough members, in fact, that we may well see reductions in the feds’ power to secretly collect data about Americans without our knowledge, as well as more oversight over the secretive Foreign Intelligence Surveillance Act (FISA) Court.

The USA Freedom Act expires on Sunday. Passed after Edward Snowden exposed the ways the National Security Agency (NSA) was secretly collecting telephone and internet metadata of millions of Americans, the act both retroactively authorized the data collection and added some stricter rules to the process. Privacy and civil rights–focused lawmakers and activists have been trying since then to rein in domestic surveillance even further. Sen. Rand Paul (R–Ky.) has been using his positive relationship with President Donald Trump—and the president’s anger at the surveillance of his campaign, which ultimately led to a failed impeachment attempt—to push for reforms.

The Hill reported on Sunday that Paul is, as he has been in the past, the loudest voice stopping Congress from quietly keeping things the way they are:

Paul says he won’t support a short-term extension and appeared skeptical that he would back a larger deal that paired a USA Freedom extension with reforms to FISA, though he added that he could support some of the surveillance reforms if they get standalone votes, as amendments, for example.

He’s also pushing for an amendment vote to prohibit FISA warrants from being used against American citizens and to prohibit information obtained in the FISA courts from being used against a U.S. citizen in domestic courts.

“I’m not for any extension. I’m for fixing it….I’ll vote no on any extension,” Paul said.

He’s not alone among Republicans in the Senate, and he’s got plenty of support from Democrats in the House as well, to require that there be changes. Rep. Doug Collins (R–Ga.) went on Fox Business yesterday to say that there weren’t enough votes in the Democratic-controlled Congress to reauthorize the USA Freedom Act unless there were reforms.

Reform-minded members of Congress aren’t focused entirely on the same reforms. The Democrats want to make sure that the records collecting program is officially dead. (NSA has unofficially stopped doing it, but the authorization still exists.) Paul and some other Republicans are using the problems with the warrants used to wiretap former Trump aide Carter Page to call for more independent oversight to review and advise the FISA court on warrants. Meanwhile, Attorney General William Barr and Senate Majority Leader Mitch McConnell (R–Ky.) prefer renewal without changes.

Nothing in these reforms is likely to have prevented what had happened with Page, since it’s not the USA Freedom Act’s authorities that were used to snoop on him. And based on the angry reaction of the FISA Court’s judges when they found out the FBI had misled them in parts of the warrant application—and their decision to call for an independent reviewer—it’s not clear additional oversight of the court itself would have stopped what happened with Page. The problems seemed to have originated from within the FBI itself.

But this is probably the only way to get Trump to care about restraining the use of secret surveillance on the rest of us. That is surely why Paul is hammering on about what happened to Page and Trump.

Paul’s proposed reforms are probably a bridge too far to actually pass, but it’s an admirable effort. Paul seems unlikely to be able to convince Congress to eliminate domestic FISA warrants entirely. But just as the USA Freedom Act was a compromise reform forced in part due to Paul’s stubborn refusal to shut up about Americans’ rights after Snowden’s reveal, his prominent status in Trump World will guarantee that at least the broadest reforms will be considered.

But will they actually be debated? That’s not so clear. There was already an aborted effort to attach reauthorization to a coronavirus emergency bill last week. With a deadline looming, there’s sure to be an effort to roll reforms of some sort into other must-pass legislation. It’s just not clear as yet how far those reforms will go.

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As part of President Donald Trump’s attempt to portray himself as a criminal justice reformer, his reelection campaign last week attacked former Vice President Joe Biden, the leading contender for the Democratic nomination, for supporting harsh drug policies that have “wreck[ed] countless lives” and endangered overdose victims by discouraging bystanders from seeking help. It’s an interesting gambit from a man who ran for president in 2016 on a “law and order” platform borrowed from Richard Nixon. Whether it will amount to more than that seems doubtful at this point, given Trump’s silence on how he would reform drug policy or make the criminal justice system less mindlessly punitive.

“In addition to wrecking countless lives with the 1994 crime bill, during his time in the Senate, Biden’s ‘priority’ was legislation that policy experts agree made the opioid epidemic far more deadly,” says a March 4 press release from the Trump campaign. “Biden pioneered legislation that decreases the likelihood of people to call 911 if they witness a drug overdose and has even led to prosecutors filing homicide charges against drug overdose victims’ loved ones.”

The Violent Crime Control and Law Enforcement Act of 1994, which Biden was still bragging about as recently as 2015, created 60 new capital offenses, increased drug penalties, provided $10 billion for prison construction, and encouraged states to pass “truth in sentencing” laws that curtailed or eliminated parole. As Udi Ofer of the American Civil Liberties Union puts it, “the 1994 Biden Crime Bill” (as Biden has proudly called it) marked “the moment when both parties, at a national level, fully embraced the policies and political posturing that exacerbated the mass incarceration crisis we are trying to fix today.” While the bill was not “the key driver of mass incarceration,” the Sentencing Project’s Marc Mauer observes, “it certainly escalated the scale of its impact.” And Biden also played a leading role in earlier legislation that ramped up penalties for drug offenses, including the Comprehensive Crime Control Act of 1984, the Anti-Drug Abuse Act of 1986, and the Anti-Drug Abuse Act of 1988.

Today, Biden has repudiated his longtime support for mandatory minimum sentences, which he says should be abolished. He also wants to eliminate the irrational sentencing disparity between the smoked and snorted forms of cocaine, which was created by the 1986 law and reduced by the Fair Sentencing Act of 2010. And while continuing to resist the repeal of federal marijuana prohibition, Biden does now call for decriminalizing cannabis consumption and automatically expunging “all prior cannabis use convictions” (neither of which would have much of an impact at the federal level, since the Justice Department rarely prosecutes low-level marijuana cases). Although Trump touts his support for the FIRST STEP Act—a 2018 law that, among other things, retroactively applied the shorter crack cocaine sentences approved in 2010—he has said nothing about further steps beyond the relatively modest reforms included in that law.

The Trump campaign’s charge that “Joe Biden made the opioid crisis worse” refers to a provision of the 1986 Anti-Drug Abuse Act that prescribed a sentence of 20 years to life for drug distribution when it results in death. Like many anti-drug policies enacted in the 1980s and ’90s, that provision ostensibly was aimed at “kingpins” who make a fortune by selling drugs that kill people. But prosecutions for “drug-induced homicide” (mostly at the state level) usually involve low-level dealers and acquaintances close to overdose victims, since those are the cases in which the causal link is easiest to prove. And Trump is right that such cases can involve “homicide charges against drug overdose victims’ loved ones.” These prosecutions are not only cruel and unjust; they are potentially deadly, since fear of homicide charges is a powerful deterrent to calling 911 when someone overdoses.

The Trump campaign backed up its charge against Biden by linking to a 2019 Politico story by Zachary Siegel, which also discusses another harm-promoting policy backed by Biden. The 1986 Anti-Drug Abuse Act included a provision known as the “crack house statute,” which made it a felony, punishable by up to 20 years in prison, large fines, and property forfeiture, to “knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance,” or to “manage or control any building, room, or enclosure” and knowingly make it available for illegal drug use. Biden’s Reducing Americans’ Vulnerability to Ecstasy (RAVE) Act, the essence of which was included in the PROTECT Act of 2003, expanded that provision to cover temporary venues used for raves or other events where people consume drugs.

Critics of the RAVE Act pointed out that it discouraged harm-reducing measures such as allowing the distribution of pamphlets with advice for minimizing MDMA risks or even providing bottled water, since such precautions could be cited as evidence that a rave organizer knew attendees would be using drugs. Today federal prosecutors argue that the crack house statute makes it illegal to establish supervised injection facilities where people can use drugs in a safe, medically monitored setting. Prohibiting such facilities, which operate legally in scores of cities around the world, is arguably another way that “Joe Biden made the opioid crisis worse.” But the president’s re-election campaign is silent on that point, presumably because the Trump administration is using the threat of criminal prosecution to block supervised consumption sites.

Trump also has “made the opioid crisis worse” by ham-handedly cracking down on prescription analgesics, a policy that has hurt bona fide patients while driving nonmedical users toward black-market substitutes that are far more dangerous because their potency is highly variable and unpredictable. For his part, Biden threatens to prosecute employees of companies that make pain medication, although he is vague about the legal basis for that. He also vows to “eliminate overprescribing of prescription opioids for pain” and “improve the effectiveness of and access to alternative treatment for pain,” which does not sound promising for people with chronic pain who have found that opioids are the only treatment that makes their lives bearable.

Trump has highlighted his use of clemency, and his administration reportedly is considering reforms that could help reduce the huge backlog of applications for pardons and commutations. Biden promises to “use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.” Citing the example of Barack Obama, who issued more commutations than any president in history, Biden’s campaign says he “will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.”

Given Biden’s long history as a zealous drug warrior, his recent conversion should be viewed with skepticism. But at least he has laid out specific reforms he would pursue as president, while Trump has done nothing beyond bragging about his accomplishments and sniping at Biden’s.

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A cabal of unsavory U.S. senators have introduced a long-anticipated measure that would pressure tech companies to weaken protections for communications privacy in the guise of a measure aimed at child porn.

While the bipartisan bill, S.3398, never mentions the word “encryption,” it makes online companies liable for information exchanged by their users unless they adopt practices approved by the government. Smart observers assume that means leaving people’s messages open to snoopy officials.

“The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would create incentives for companies to ‘earn’ liability protection for violations of laws related to online child sexual abuse material,” asserts a March 5 press release from the Senate Judiciary Committee. The release lists Senators Lindsey Graham (R-South Carolina), Richard Blumenthal (D-Connecticut), Josh Hawley (R-Missouri), and Dianne Feinstein (D-California) as leads on the bill, with an additional three Democrats and two Republicans as co-sponsors.

Civil liberties advocates of all stripes pushed back immediately.

“The measure … would lead to a ‘backdoor’ in encrypted services, thereby jeopardizing the security of every individual,” the American Civil Liberties Union and Americans for Prosperity riposted in a joint response. “Technology experts and civil society organizations have repeatedly warned that backdoors could be exploited by bad actors and that no backdoor could guarantee only law-abiding officials have access.”

While the official text of S. 3398 is not yet available, draft copies have circulated for weeks, giving lawyers and tech experts plenty of time to examine its implications. In particular, they’ve scrutinized the bill’s reservation of Section 230 protections against liability for the speech of third parties to only a company that has “implemented, and is in compliance with, the child exploitation prevention best practices published by the Attorney General,” in the language of the draft bill.

“This bill is trying to convert your anger at Big Tech into law enforcement’s long-desired dream of banning strong encryption,” warns Riana Pfefferkorn, associate director of surveillance and cybersecurity at Stanford Law School. “The AG could single-handedly rewrite the ‘best practices’ to state that any provider that offers end-to-end encryption is categorically excluded from taking advantage of this safe-harbor option. Or he could simply refuse to certify a set of best practices that aren’t sufficiently condemnatory of encryption. If the AG doesn’t finalize a set of best practices, then this entire safe-harbor option just vanishes.”

That’s an extrapolation, of course, since the bill doesn’t use the word “encryption” at all. Sen. Blumenthal even flat-out insists, “this is not an encryption bill.” But the senators’ announcement of the EARN IT Act leans heavily on forcing tech companies to adopt “best practices related to identifying and reporting online child sexual exploitation” or else face “civil recourse if companies choose not to comply with best practices or establish reasonable practices.” It’s difficult to see how companies are going to detect the exchange of forbidden material if they offer their users end-to-end encryption. They’ll have to weaken or abandon such offerings to escape liability for users’ communications, but without ever explicitly being told to do so.

But weakening encryption with backdoors, or abandoning it entirely, would also do away with the benefits it offers to people seeking to protect themselves from state surveillance, hackers, identity thieves, and nosy busybodies.

“The bill would fall far short of the goal of protecting children, while at the same time making all Americans less safe and less secure by potentially exposing everyone in society to substantially higher risk from malicious cyber actors, including hostile nation-states,” cautions the Media Alliance, a coalition of 25 organizations.

That’s an excellent point. People use encryption to protect sensitive information from prying eyes. Such information might involve child pornography, but it’s far more likely to consist of financial data, personal communications, timely journalism kept from investigative targets, and political messages likely to draw the ire of government officials. The reasons for using encryption are as real and varied as the reasons for keeping your cash in a safe and your front door locked.

Critics also fret that EARN IT would draft private companies into the senators’ potentially unconstitutional and ill-defined crusade against … well, ostensibly against “child sexual exploitation,” but really against privacy.

“The proposed bill may not comport with the First Amendment, as numerous categories listed as matters to be addressed in the best practices are written in an overly broad fashion, without clear definitions,” the Media Alliance adds. The organization also worries that if tech firms abide by the pressure to search users’ communications for forbidden material, “a court could find that such private companies were acting as ‘agents of the government.'”

But vagueness and the conscription of private parties to enforce politicians’ whims should come as no particular surprise when we’re discussion an anti-encryption law that masquerades as a strike against kiddie porn. Nothing is as it seems to be in this bill, which prescribes penalties for violators, with the means of avoiding them to be sketched in at some later date.

“Under EARN IT, the Commission would effectively have the power to change and broaden the law however it saw fit, as long as it could claim that its recommendations somehow aided in the prevention of child exploitation,” notes the Electronic Frontier Foundation’s Elliot Harmon.

But no matter what details are filled in later, the alleged targets of the bill—child pornographers—are likely to remain largely immune to its mandates. Already engaged in criminal activity, and warned by the passage of the law, they’re bound to turn to legal or illegal stand-alone encryption products and the dark web to keep their secrets.

“Short of a form of government intervention in technology that appears contemplated by no one outside of the most despotic regimes, communication channels resistant to surveillance will always exist,” acknowledged a 2016 report from the Berkman Center for Internet and Society at Harvard University.

Lawmakers may despise encryption for the barrier it poses to government surveillance, but their nosy presumption doesn’t actually keep kids safe, nor reduce Americans’ very real need for privacy. In fact, government officials’ overt hostility to public use of end-to-end encryption is all the more reason to keep such privacy protection handy—whether or not snoopy senators think we’ve earned it.

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When he arrived at Harry’s house in Grand Rapids, Michigan, on the evening of April 23, 2016, Dev had good reasons to be a tad apprehensive.

The occasion was Med Ball, a yearly prom for students enrolled in the College of Human Medicine at Michigan State University (MSU). Dev was one of those students, and he had decided at the last minute to accept an invitation to gather with a small group of acquaintances for drinks before the main event.

He knew several of them—Harry the host, and two women, Jillian and Valerie—from a service trip to Cuba a few weeks earlier, during spring break. Dev had thought he’d detected a certain mutual attraction between himself and Jillian, though nothing came of it. After Cuba, she broke up with her boyfriend and entered into a casual, friends-with-benefits arrangement with Harry. Valerie’s date for the Med Ball was Lucas, her soon-to-be-ex-husband. (All these names have all been changed to protect their anonymity.)

The night began with beers, wine, and Cuban cigars. It ended with hangovers and regret, following a series of alcohol-fueled arguments, dancing, some tears, and sexual encounters between several unexpected pairs of people. In other words, it was a night the various participants might well have been happy to forget—and move on with their lives.

But Dev can never move on from that night. Two years later, Jillian and Valerie told friends and administrators that the events of Med Ball had left them feeling deeply uncomfortable about Dev and that they didn’t want to be in clinical rotation with him. This raised red flags, and MSU decided to look into the matter. On April 17, 2018, the university informed Dev that he was being investigated for sexual misconduct.

Following an abbreviated and opaque procedure that not involve a hearing, Dev was found responsible and given an interim suspension. On February 14, 2019, Dev finally convinced the administration to grant him a hearing—but only to decide whether his suspension should go into effect. MSU ruled that it should, and Dev was removed from surgery rotation with only two weeks of work left. He was thus unable to take his final examinations, though this was the least of his problems. Within a few weeks, MSU formally dismissed Dev from the college of medicine.

Dev subsequently sued MSU for wrongful expulsion. By the time of his expulsion, he had incurred more than $283,000 in debt. As a doctor, he could have paid it back. But at this point, it is vanishingly unlikely that he will ever obtain a degree or practice medicine.

“I’m done,” Dev tells Reason. “I dedicated 8 to 12 years of studying for this. That was my life.”

***

In 2011, the U.S. Education Department’s Office for Civil Rights released a “Dear colleague” letter to universities and colleges instructing them to take sexual misconduct much more seriously. This new guidance reinterpreted Title IX—a decades-old gender equality law—to require that administrators investigate any complaint of unwanted sexual conduct and adjudicate it under the preponderance of the evidence standard (i.e., more likely than not).

The feds also discouraged cross-examination during sexual misconduct hearings—the Office for Civil Rights worried this could re-traumatize sexual assault survivors—which had the effect of motivating many universities to move toward a single-investigator model. Under this system, a sole administrator decides which witnesses to interview, what information to include in a report, and what outcome should be recommended.

The new policies, coupled with a cultural shift toward automatically believing alleged victims, have made college campuses very hostile to the concept of due process. Students accused of sexual misconduct—usually men, and often men of color or immigrants—face an uphill battle, not just in proving their innocence but in navigating the byzantine campus Title IX bureaucracy in order to mount any defense. Students are routinely denied adequate legal representation, access to the evidence against them, the right to call supportive witnesses, and the ability to effectively question their accusers.

The situation for the accused is often so unfair that some students suspended or expelled for sexual misconduct have gone on to sue their former universities. Many have won in court. Of the 537 post–”Dear colleague” letter lawsuits, accused students have triumphed in a little more than half of them, according to K.C. Johnson, a history professor at Brooklyn College.

Dev’s lawsuit is ongoing. The elements of his case resemble many others: a night of drunken sex that one party claims was consensual and another party remembers differently; a significant passage of time; an insinuation that eventually becomes a formal accusation; a fraught effort to mount a defense; a life-derailing finding of guilt. But with one court decision already against him, he’s in a tough spot. He’s financially ruined as well, and he can’t afford the caliber of lawyer he needs.

It’s a Catch-22: He can’t dig himself out of debt until he finishes medical school, but he needs to win the lawsuit to have a chance of doing that.

“If [the lawsuit] doesn’t work, I’m fucked,” says Dev. “And it’s probably not going to work.”

***

Dev was born in West Virginia to Sri Lankan parents. They soon moved to the suburbs of Detroit. Dev excelled at academics and was accepted at Harvard. He graduated in 2014 with degrees in human evolutionary biology and in mind, brain, and behavior studies, and he decided to return to Michigan for medical school.

In 2016, Dev was in his first year of medical school at Michigan State in East Lansing. MSU has a satellite campus an hour away, in Grand Rapids, where some of the medical school’s clinical training takes place. Grand Rapids was also the location of Med Ball.

The events of that night would eventually be chronicled in an exhaustive series of documents—including reports, lawsuits, interviews with the participants, and court opinions—obtained by Reason.

Dev drove to the pre-event party at Harry’s, where about 20 people had gathered. It was a mix of singles and couples, all dressed in suits and gowns. Dev caught up with Jillian and Valerie. They were drinking, but all accounts agree that no one was sloppy drunk by the time the pre-party ended.

One person who was not enjoying himself was Lucas, Valerie’s husband. Unhappy to be attending Med Ball—he was not a medical student—he quarreled with his wife throughout the night, according to all accounts.

The group took Ubers to the main event at Noto’s, an Italian Restaurant. Med Ball began with a cocktail hour, then dinner and an awards ceremony, and finally more drinks and dancing. Dev taught Jillian the waltz and the cha-cha. The pair engaged in grinding, and Jillian told Dev, “I guess you’re my date,” according to his lawsuit.

Meanwhile, the fight between Valerie and Lucas had escalated. Lucas told his wife he wanted a divorce and stormed out of the restaurant. Valerie went to the bathroom to reapply her makeup, and Jillian accompanied her. She tried to make Valerie feel better, according to Valerie’s account.

Valerie then disappeared, and Jillian went looking for her. Jillian soon found Valerie outside of Noto’s, in the company of Harry—with whom Jillian was in a sexual relationship. Valerie and Harry were kissing, according to all accounts.

Infuriated, Jillian ran back into the restaurant and up a flight of stairs. She sat down and texted Valerie: “Just done. Don’t expect me to be ur friend anymore.”

When Dev found Jillian, she was “upset, fairly drunk, and crying,” according to the judicial opinion. She explained that for weeks she had been sleeping with Harry, and Dev gathered that she was sad about seeing him kissing her friend. Dev began to comfort her, and eventually kissed her. According to Dev, she kissed him back enthusiastically, and they began touching each other over and under their clothes. Then they retreated to a stairwell.

Their recollections of what happened next diverge. According to Dev, Jillian took off her dress and willingly got down on her hands and knees for a sexual encounter. Dev tried to have penetrative sex with her, but was too drunk, and they eventually gave up.

“Everything was reciprocated,” Dev would later tell the investigators. “There was no hesitation. If anything, there was eagerness.” He recalled Jillian asking for his jacket to use as a cushion for her knees.

Jillian remembered things differently. She did not dispute that she took off her own dress, but she later claimed that she was too intoxicated to give consent and that she “shut down” during the encounter as “a reaction to the hurt she felt from seeing [Valerie and Harry] kissing,” according to investigators. She said she never explicitly agreed to the encounter, but she reported that she never said “no” either.

Afterward, they went back downstairs, where they ran into Harry. The group then took an Uber to a nightclub and sat down on a couch when they got there. Dev left, and Harry apologized to Jillian for kissing Valerie. Jillian then admitted to having a sexual encounter with Dev at the restaurant.

Valerie had come to the nightclub as well, but had trouble presenting her ID—it was in her purse, which was in Harry’s possession. When she finally made it inside, she found Harry and Jillian sitting closely together.

In her version of events, Valerie did not specifically remember interacting with Dev at the nightclub. But according to Dev, they danced together while Harry and Jillian were talking. She told him that he and Jillian would make a good couple, and Dev hinted that they might already be headed in that direction. But then Valerie placed her hand on his jaw and the two started kissing, according to Dev.

Meanwhile, Harry had passed out while talking with Jillian, and the club’s security guard told them they had to leave. The group decided to go back to Harry’s house. Jillian went to bed, while Dev, Harry, and Valerie stayed up talking in the kitchen. According to Dev, he left the room—and when he returned, he saw Harry and Valerie having sex.

Dev went upstairs to sleep in Harry’s bed. When he crawled under the covers, he found Jillian. They were both fully clothed, according to Dev. He recalled trying to kiss her, but she preferred to sleep. According to Jillian, nothing further happened between them.

Harry later recalled the scene differently. When he entered the bedroom, he thought Dev was trying to cuddle Jillian. He kicked Dev out of the room, and spoke with Jillian for about 20 minutes. He later recalled being upset with her.

Dev retreated to the living room, where he laid down on a large sectional couch next to Valerie. Their accounts of what happened next differ wildly: According to Dev, Valerie was awake, made room for him on the couch, and reciprocated when he touched her. Valerie recalled being asleep and waking up to discover Dev spooning her and touching her sexually. She said she gave him a firm “no,” and he moved off of the couch. Dev said Valerie communicated that she was too tired, and he desisted and went to sleep in another room.

The next morning, Dev drove back to East Lansing. Harry and Jillian went to brunch with another couple: a man and a woman. The woman had been at Med Ball and the nightclub as well, and she would later tell investigators that when she saw Jillian, Valerie, Harry, and Dev, they had all looked unhappy. No one was happy at brunch either. It seemed that Harry was mad at Jillian for sleeping with Dev.

***

Over the next two years, Dev had very little contact with the Med Ball crew, though he did move to Grand Rapids for school. He had tried to see Jillian again, but he gave up when she told him via text that her priority was Harry.

Things did not work out between Jillian and Harry. Jillian eventually filled out a formal request with MSU’s administration to never be placed in clinical rotation with either Harry or Dev because it would “significantly negatively affect my learning and well-being,” she wrote. (Jillian did not respond to a request to comment for this article.)

Valerie was placed in clinical rotation with Dev but felt uncomfortable around him and filed a request to be moved. Valerie noted that “a few other people” felt similarly about Dev. (Valerie declined to comment for this article.)

The double requests—Valerie’s and Jillian’s—raised the suspicions of MSU’s administration, and Assistant Dean Angela Busch arranged meetings with the two women.

In her meeting with Busch, Jillian—who had attended therapy in the years since, had come to see her experience with Dev as sexual assault, and was now struggling in school—broke down in tears. She did not elaborate upon her history with Dev, according to Busch, but another student whom Jillian had confided in informed the dean about the incident. As a mandatory reporter, Busch was obligated to initiate a Title IX sexual misconduct investigation. On February 26 and 28, the dean informed the Office for Institutional Equity (OIE) that Dev had allegedly assaulted the two women.

OIE hired a risk management firm, Kroll Associates Inc., to investigate the matter. The investigators informed Dev of Valerie’s allegation on April 17, 2018—nearly two years after the night in question. For reasons that will become clear, they did not inform him of Jillian’s allegation until July 31.

Valerie had a month to prepare for her interview with the investigators. Dev was given three days. His interview was scheduled for April 20—the same day as his internal medicine shelf exam, one of the toughest tests for doctors in training.

Dev failed it—in large part, he claims, because of the pending investigation. “It affected my academic performance, to say the least,” says Dev.

Unaware that he was facing potential expulsion and that he should consult an attorney, Dev allowed investigators to interview him. He had little time to prepare, and he did not fully understand that this meeting would be his only opportunity to challenge Valerie’s allegation and present evidence on his behalf. OIE discouraged him from finding a lawyer, instead suggesting that he choose an advocate—a supportive faculty member—to accompany him, he says. (The use of advocates rather than lawyers is frustratingly common in Title IX investigations.) Dev decided that he did not want to “burn any bridges” with faculty members in case he needed letters of recommendation from them, and went into the interview alone.

“That was my folly,” he says.

Investigators initially closed Jillian’s case on March 5, a few days after receiving the report from the dean, due to the alleged victim’s non-participation. Jillian was not interested in cooperating. But weeks later, in June, Kroll interviewed Jillian about Valerie’s case. Jillian then changed her mind and decided to move forward with her own case. Dev was interviewed about Jillian in August.

The investigators issued their decision in February: Dev had committed sexual misconduct in both cases. He was responsible for the sexual encounter with Jillian at Noto’s because Jillian had been too drunk to consent, and he was responsible for the sexual contact with Valerie on the couch because Valerie had not given consent.

In reaching this decision, Kroll purportedly used a preponderance-of-the-evidence standard, in which investigators only needed to be 51 percent confident that Dev was guilty. Investigators never held a hearing, nor did they allow Dev to cross-examine either his accusers or the several other people—Harry, the dean, various friends—who had made statements to the investigators.

Two days later, on February 14, MSU held a hearing to decide whether to accept Kroll’s recommendation of an immediate suspension for Dev. Dev was only permitted to argue against the suspension, not against the verdict itself. Interim Dean Aron Sousa argued before a three-person panel—a panel composed of adjudicators whom he had hand-picked for the position—that the suspension should go into effect.

According to the lawsuit, Sousa conceded that the allegations against Dev constituted a story that was “at some level” about a group of people “behaving badly and hurting each other.” But he maintained that Dev “took advantage of a friend” when she was not of entirely sound mind, and thus that the suspension “was reasonable and should be continued.” The panel agreed and suspended Dev. Two weeks later, he learned that the College of Medicine had decided to expel him. (Michigan State University declined to comment for this article.)

Dev appealed the decision, citing a relevant Sixth Circuit court decision, 2018’s Doe v. Baum, which held that due process requires a hearing and attorney-facilitated cross-examination in certain university disciplinary proceedings. This time, MSU granted him something resembling a proper hearing, though Dev attempted to argue that the adjudicator they chose—an administrative law judge named Mark Eyster—was biased because he was already aware of MSU’s finding of responsibility against Dev. Eyster did not rescue himself, he allowed the Kroll report to be submitted as evidence, and while he did grant cross-examination of the witnesses and accusers, he also permitted Jillian to refuse to answer certain questions.

The outcome was the same: The judge ruled that a preponderance of the evidence demonstrated Dev had engaged in sexual misconduct. Nearly out of options, Dev was expelled from the college.

That Dev did ultimately get a hearing with an administrative judge ended up being a serious blow to his lawsuit. Dev alleged that the process was biased against him and that the various investigators and adjudicators had not properly considered whether his accusers and their supporters had incentive to lie to cover up their own bad behavior. But on December 10, 2019, District Court Judge Paul Maloney ruled against Dev.

In his decision, Maloney held that since Eyster had already factored in various considerations that could have helped Dev’s case and deemed them not credible, there was nothing that could be done. Here is a relevant part of his decision:

Because the women were engaged in romantic relationships, [Dev] reasons, they were motivated to claim that their encounters with him were nonconsensual to protect their relationships. This may cast doubt on the accuracy of the proceedings if it were not considered by ALJ Eyster, but ALJ Eyster specifically mentions both [Jillian’s] relationship and [Valerie’s] marriage in his report. This was part of ALJ Eyster’s credibility determination, and therefore, it does not cast doubt on the accuracy of the proceedings.

Maloney was also unmoved by Dev’s argument that Eyster had allowed Jillian not to answer certain questions. Nor did it matter that Kroll’s finding had been Jillian was too drunk to consent, whereas Eyster had concluded that Jillian was not too drunk but still did not consent. “The difference does not cast doubt on the accuracy of the proceedings,” wrote Maloney.

In January, Dev’s attorney informed him that he would be stepping down from his case. Regrettably, he didn’t think appealing Maloney’s decision was a strong enough option.

Dev is appealing anyway, but he’s discouraged. He knows the odds are slim that he could obtain a more favorable decision at this point.

“Everything that I have falls into this weird grey area,” he says. “I don’t have any slam dunk.”

***

It might be tempting to say that Dev simply got unlucky: A coincidence prompted MSU’s administration to investigate, the investigators chose his exam day to interview him, the various judges were unexpectedly satisfied with the process, and so on.

The elephant in the room, of course, is Larry Nassar: an MSU doctor associated with the U.S. women’s national gymnastics team who was convicted of serial sexual abuse. Nassar’s appalling crimes captured the nation’s attention in 2017, subjecting MSU to a barrage of negative media coverage that suggested the university had utterly failed to protect female students from predatory men. Following the Nassar scandal, the university had every reason to be more proactive about allegations of sexual misconduct. Indeed, the Education Department’s Office for Civil Rights, which ensures that universities are complying with Title IX, initiated an investigation into MSU’s handling of the Nassar affair on February 22, 2018—just a few days before the university launched the investigation into Dev.

MSU’s failure to stop Nassar—who was credibly accused of molesting more than 250 girls—is, of course, a travesty. But a course correction that involves automatic suspicion of the accused and departures from due process norms is not the right remedy. Unfortunately, this is exactly what has occurred on college campuses all over the country.

Dev was accused of engaging in nonconsensual sex while under the influence, on a single night, years ago. He is one of many students who find themselves in this situation. According to The Atlantic‘s Emily Yoffe, 40 percent of alleged victims do not immediately report what happened, and the average period of delay is 11 months.

How can these men defend themselves against this kind of accusation, when neither they nor their victims remember everything that happened? How do they prove beyond a doubt that the people giving evidence against them—who themselves made embarrassing decisions—had reason to distort the truth, to disguise their own moral failings? How does an ostensibly fair system determine that exactly one person—Dev—must pay for what happened that night, and suffer the end of his career aspirations, social stigma, and permanent crippling debt, because of it?

“I’m broken,” says Dev. “I can’t fight this.”

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How should you talk to your kids about the coronavirus? CNN recommends this: “Resist the urge to bombard them with every possible headline or piece of information about the outbreak.”

Twenty-four hour news channel: heal thyself.

Aside from the hypocrisy, it’s good advice. Unfortunately, you can’t expect the media to avoid offering tips at a time like this. The ritual has become part of the modern crisis package: assume parents are desperately in need of someone they don’t know telling them how to talk to their own kids.

Nancy McDermott, author of the forthcoming book, The Problem with Parenting, says parents always asked for these articles when she was a mommy blog editor. But, she added, “I don’t think this was something that would have vexed our parents or grandparents in quite the same way.”

Yes, I doubt there were How to Talk About the Disappearance of Amelia Earhart notes going home from the schools. But now, a phalanx of psychologists rushes in to prescribe precisely the right mix of gravitas, insouciance, wisdom, and calm.

The usual mix of advice includes: listen to your kids (duh), don’t freak out during the conversation (duh), don’t tell them more than they need to know (good advice), and tell kids what they can actually do to be safer or keep other people safe.

In the case of the coronavirus, I’m happy to say that this includes telling the kids to wash their hands and cough into their elbows. One site tells kids to practice the “Dracula sneeze,” which is a great name for this technique.

Many advice-givers also add Mr. Rogers’ tip: “Look for the helpers.” By this he meant the firefighters, doctors, and anyone else doing the right and difficult thing to improve the situation. I’m happy about that suggestion.

What I’m less happy about is the tip-giving culture itself, because it implies parents want or need—I’m not sure which—expert help when it comes to interacting with their own children.

“Coaching parents how to talk to their kids first emerged in the 1930s,” Frank Furedi, author of Paranoid Parenting, told me in an email. “But it kicked in big time in the 1980s. This shift was based on the assumption that communication between parent and child required expert skill, and if a parent miscommunicated it could have a devastating effect on their child.”

So mom and dad have basically been warned that any word they utter could ruin their kids forever. And we wonder why parents are so anxious, and read so much advice? It’s a vicious circle.

NBC gives what seems like an entire script for parents to follow:

“You can say something like, ‘It’s really scary for you to be hearing all about this virus and people who are dying and how awful it is. I bet that has you feeling worried that you or someone you love might get sick and maybe even die. I can absolutely see — especially as a kid — how you would feel this way and have these thoughts. I think that’s probably pretty normal…'”

And on and on.

The problem with that script is, well—it’s a script. It’s obviously not meant to be repeated word for word, but clearly the network feels that parents need extremely granular guidance. But as Furedi points out, “Whenever parents adopt someone else’s script, they lose the capacity to be sensitive to specific dynamics of their very unique relationship. It is far better to invent a family ritual like, ‘This is how the Smiths react when faced with a mega problem.’ Such rituals make kids feel that they are special and helps forge a close bond within the family.”

If that sounds like advice for parents on how to talk to your kids about the coronavirus, you’re welcome to take it—or leave it. Probably, most parents will navigate this particular conversation with their kids just fine on their own.

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