If you had to design a perfect villain for the fight against campus sexual violence, you could not do better than Earl Ehrhart. For three decades, Ehrhart, a businessman from Cobb County, served in the Georgia House of Representatives. (He retired in 2019, and his wife, Ginny, stepped into the seat.) The Republican “made a name for himself as a lightning rod around social issues,” wrote Tyler Kingkade in a 2017 exposé for BuzzFeed News. “He fought affirmative action for years, tried to pass laws undercutting antidiscrimination ordinances in Atlanta, and declared in 2005 that what ‘militant homosexuals are seeking is special rights, not equal rights.’” He also defended long mandatory minimum sentences that “denied due process to young offenders, most of them black teens.” Kingkade’s article focused on Ehrhart’s most recent crusade, which centered on “changing how colleges deal with sexual assault, out of concern for the treatment of accused students.”
At the time of its publication, Ehrhart had just come close to passing a bill designed to do exactly that. As originally drafted, that law, known as House Bill 51, would have required a university to wait until the end of a criminal investigation and trial before taking any steps of its own to address a report of sexual assault or other felony. Even then, the law would have only allowed the university to discipline a student who had been found guilty or chose not to contest the charges. The bill offered just one narrow exception: a school could place a student on interim suspension before the end of a successful criminal prosecution if to do otherwise would pose “an immediate threat to the life, health, or safety of the student body.” That is a remarkably high bar. What if you think someone is likely to rape again at some point during their time at the school, but not “immediately”? More worrisome, even that exception was available only if prosecutors brought charges. If not, the school’s hands would be tied entirely.
Ehrhart insisted that such radical change in schools’ approach to sexual harassment—forbidding them to respond in all but the narrowest of circumstances—was necessary to restore due process protections for accused men, though he never explained exactly how. “My advice is to shut down this office and all pending kangaroo courts until my bill passes,” Ehrhart emailed administrators at the University of Georgia after a constituent contacted him, worried that her son, accused of sexual misconduct, was being treated unfairly by the state’s flagship school. That kind of direct intervention into schools’ disciplinary actions was commonplace for Ehrhart. Both Kingkade, in BuzzFeed, and Kathryn Joyce, writing in the New York Times, reported a series of cases in which the state representative contacted university administrators to demand that they conclude that a specific, always male, student had not committed a sexual offense.
One such instance involved a woman at Kennesaw State University, whose complaint said that a male friend had raped her after she’d consented to some sexual contact but refused to have intercourse. At first, the woman told Joyce, she was not sure how serious the breach had been, and let the man—a fellow KSU student—stay over. They ate breakfast together. But after the man blew off their later plans, she spoke to friends about the event, which they recognized as a sexual assault. (For a variety of complicated reasons, including cognitive processing of trauma, many survivors do not immediately turn against their assailants. I of course have no knowledge of the truth of these particular accusations.) An investigation commenced, during which both parties felt aggrieved. According to the complainant, administrators asked whether she only considered the incident to be rape because the man hadn’t called her. The accused student’s attorney, meanwhile, reported that investigators fell out of contact with her client for months. Ultimately, investigators found the man responsible for the assault and recommended he be suspended for two semesters.
That is when his attorney looped in Ehrhart. We do not know what their first conversations looked like, or how much Ehrhart knew about the case. But public records show that the attorney emailed KSU’s president, Sam Olens, in December 2016, urging the school to revisit the disciplinary charges—and copying Ehrhart on the message. Ehrhart was well known to the KSU administration. A sports complex he ran sometimes partnered with the university, and he had supported Olens’s candidacy for the KSU job back when Olens was Georgia’s attorney general. Now Ehrhart followed up, writing to Olens: “This was the second of the absolutely ridiculous cases I was concerned about. I label this one ‘Breakfast with a rapist’ made for TV absurdity.” Ehrhart also pointed out to Olens that prosecutors had earlier decided not to pursue a criminal case against the student. Citing that decision not to prosecute, Ehrhart told KSU’s president: “How on earth a University bureaucrat can be allowed to draw a different conclusion ruining someone’s life escapes me.” In other words, if an assault did not result in a criminal conviction, it did not happen, period. Olens forwarded Ehrhart’s email to KSU’s Title IX coordinator, who told Olens the case had been reopened and that she would keep the president updated.
According to the New York Times, when the school told the complainant her case would be reviewed again, it also provided her with a new list of witnesses who would testify in support of the man. Among them was Ehrhart. “I had no clue who he was or what he could possibly know about somebody raping me,” she said. “As soon as Ehrhart’s name came up, everything went crazy, and they dropped any care they had for me.” In early 2017, at the recommendation of an external reviewer, KSU reversed the previous finding of responsibility. The male student was off the hook, and now the woman who said he had raped her would need to share a campus with him. Eventually, she withdrew.
Perhaps KSU was swayed by Ehrhart’s reasoning. The two prongs of his argument—that real victims immediately recognize rape as such, and that criminal prosecution is the only valid arbiter of a sexual assault claim—reflect widely held beliefs about the nature of both rape and our legal system. Perhaps the investigation actually had been mishandled on the first go-round. Or perhaps KSU was influenced by the fact that Ehrhart was the chair of the Georgia House’s higher education appropriations subcommittee—that is, he held a huge amount of power over KSU and other state universities’ budgets. If KSU was paying attention, they knew that Ehrhart was not afraid to use that power to make sure student disciplinary cases went as he saw fit.
In 2016, for example, Ehrhart learned of a student who wanted to transfer to Georgia State University. GSU wanted to first conduct a background check on him because the student had left his previous school during a pending investigation of his alleged sexual wrongdoing. Ehrhart emailed a GSU lobbyist to demand that an assistant dean involved in the matter be fired for her “thuggish behavior.” He instructed the lobbyist to inform GSU’s president that “I am tired of these issues, and I am going to inform all of my decisions on University funding by those who harbor these types of thugs on their campus.” (The language is worth noting. “Thugs” are not exactly known for their commitment to background checks. Given Ehrhart’s documented opposition to racial justice, it is hard not to wonder if he chose that word because the dean involved had a distinctively Black name.)
In 2015, a Black woman accused members of the Georgia Tech chapter of Phi Delta Theta of yelling racial slurs at her from their on-campus house. Georgia Tech imposed restrictions on the frat’s activities, including their partying, and mandated sensitivity training. Ehrhart thought the punishment was unfair and convened a legislative hearing on the topic. His aim was not just reinstatement of Phi Delta Theta but exposure of what he saw as a witch-hunt culture, especially with respect to sexual assault allegations. “You want to talk about ‘safe space’?” Ehrhart asked, rhetorically, in an interview before the hearing. “In the vernacular of campus discussion today, there’s no safe space for young men at Tech. You want to be safe? Go to class, then go run and hide in your dorm. That’s where we are at Tech right now.” (At the time, the school was more than two-thirds male.) During the hearing itself, Kingkade reports, Ehrhart warned university administrators in attendance: “Hear me clearly. You got a bond project? If you don’t protect students of this state with due process, don’t come looking to us for money.” Shortly afterward, the frat was fully reinstated.
A disciplinary process in which a school like KSU or Georgia Tech may be forced to throw its own determination out the window at the whim of a powerful legislator who has heard only half the story is, to put it mildly, not fair. It lacks all the markings of fairness required by due process and our moral intuitions: Impartiality. Consistency. Predictability.
I have no direct knowledge of the fairness, or lack thereof, of Georgia universities’ disciplinary responses to sexual harassment. With only public reports to go on, I cannot definitively say whether the students on whose behalf Ehrhart intervened were treated correctly by their schools. I do feel confident, though, that Earl Ehrhart is not interested in fairness. He’s interested in reducing accountability for young men, especially young white men, whom he sees as endangered victims of liberal hysteria.
EHRHART’S HOUSE BILL 51 was only the most extreme version of a wave of similar bills introduced in state houses across the country and in the U.S. Congress, backed by a coalition of fraternity lobbyists, libertarian nonprofits, and conservative legislators. These bills all sought to diminish (and in some places remove) schools’ responsibility and power to address sexual harassment, by mandating that law enforcement be involved in all such complaints—and often requiring schools to defer to that separate process.
Central to many of these proposals, including Ehrhart’s bill, was a “mandatory referral” policy that would have forced colleges and universities to forward student reports of sexual assault to the police. Mandatory referral bills come in two basic forms. The first requires schools to pass along all such reports, regardless of the victims’ wishes. (That is, once a survivor tells the school about her assault, she has no control over whether a police report is made.) The second doesn’t require schools to forward reports, but prohibits them from taking disciplinary action in response to reports of sexual assault until the police are notified, and, in some cases, until there is a conviction or guilty plea. As originally drafted, HB 51 would have combined both those approaches. It would have required Georgia colleges and universities to pass along every report of an alleged felony to law enforcement, and—aside from the narrow “immediate threat” exception—the schools would have been allowed to initiate disciplinary proceedings against a student only after a criminal prosecution had been concluded successfully. In short, the law would have paralyzed the schools.
The idea that HB 51 was necessary to protect accused students’ due process rights simply does not hold up to scrutiny. Forcing schools to delay their disciplinary proceedings, potentially for years, would not make them fairer in any way. It would simply make them rarer, slower, and less effective. The other version of mandatory referral legislation, requiring schools to report sexual assault to the police against victims’ wishes, wouldn’t have promoted due process any more effectively. Indeed, for the accused students, such bills—proposed in Delaware and Virginia, among other states—seem to place them in a worse position, now having to juggle both criminal and disciplinary proceedings against them at the same time.
Yet for many, policies that require police involvement in sexual assault allegations are intuitively appealing. They speak to so many widespread, if incorrect, assumptions about sexual violence. Isn’t calling the police the obvious choice after a rape? Isn’t criminal prosecution the best way to take rape “seriously”? If schools are doing such an awful job responding to these assaults, the logic goes, why not send the reports to the real pros in the police department? To people trying to do the right thing, mandatory referral might sound like a victim-friendly reform.
In truth, though, it would be a disaster for survivors. As we have seen, there are a million reasons why a victim might want to avoid getting involved with law enforcement. She might fear police harassment, or revealing her immigration status. She might not wish to call on the reserves needed to endure a long trial. She might not want to see her assailant in prison. At the same time, she might still need some basic support services from her school, like a dorm change or mental health services. She might feel that suspension, but not imprisonment, is the just punishment. Deciding to whom to report, if at all, is a complicated decision, and it is not an on-off switch: the fact that a survivor wants certain kinds of help does not mean she is ready to involve everyone. But mandatory referral policies narrow the range of student victims’ choices. Where once they could decide to report to just their school, just the police, or both—either at the same time or in succession—now there would be fewer options on the table. Tell the police. Tell your school, which will tell the police. Or tell no one at all.
And survivors tell us this last option, in all likelihood, would be the most appealing one to many students under a mandatory referral regime. A 2015 survey by Know Your IX and the National Alliance to End Sexual Violence indicated that survivors would be less likely to report to anyone if they knew that their school reports would be forwarded to the police.
Plus, under Ehrhart’s ideal regime, even if a victim did report, the school’s hands would be tied unless and until the accused pleaded guilty or was convicted. Such results, we know, are rare for reasons that have nothing to do with whether the reports are truthful. And, by the time the case resolved itself, appeals and all, both students would likely have long graduated—if the survivor had not already dropped out because she was forced to share a campus with the man who assaulted her. As a result, mandatory referral policies directly aggravate the problem Title IX seeks to address: unequal access to education.
Apart from these measurable harms, there’s also a unique psychic injury in depriving survivors of the opportunity to make a choice. Liz Roberts of Safe Horizon, the country’s largest victims’ services organization, put it well when she told the Washington Post: “The traumatizing nature of sexual assault is that sense of powerlessness that the victim experiences.… Our work is focused on restoring that sense of power and putting the survivor in the driver’s seat as much as possible. Any policy that takes away choice and options from victims has the potential to do real harm.” Jasmine Lester, the founder of Sun Devils Against Sexual Assault at Arizona State University, echoed these same concerns to the Huffington Post. “Sexual violence robs victims of power over their bodies, their minds, and their futures,” she said. “Survivors need to feel like they have choices. The option not to report to police but still have schools investigate is imperative.”
Despite all these flaws, bills supporting mandatory referral were popular, especially on the state level, in the mid-2010s, at the height of the backlash against advancements in Title IX. Some of the advocates and legislators who tried to pass these laws were well-meaning. In 2014, when top Democratic senators were interested in taking up the mantle of addressing sexual assault, student activists had to talk our closest allies off that path: all the interested senators were former prosecutors, so unsurprisingly their first instinct was to pull in criminal law. Luckily, they were responsive to our arguments and backed off.
But that was not true for the most determined champion of mandatory referral, Ehrhart. For him, the threat to survivors posed by mandatory referral policies was the point. After all, Ehrhart made no secret of the disdain he felt for the student survivors who opposed his crusade. At the hearing for HB 51, he spoke not of taking rape seriously but of the terrible injustice of male accountability—what he elsewhere called “an environment of male gender bias on campuses throughout the country.” Repeating one of his favorite lines, Ehrhart encouraged student opponents to “trigger somewhere else” when they snickered after a men’s rights activist testified that 40 percent of rape accusations are false and that being falsely accused is a trauma equivalent to rape. “I’m not going to allow spoiled children to hoot and holler and act ridiculous,” Ehrhart told Kingkade afterward. Grace Starling, who helped lead the ultimately successful campaign against HB 51 as a Georgia student, recalls that when she went to shake hands with Ehrhart after a critical vote, he angrily asked her, “Could you grow up?” Perhaps taking their lead from Ehrhart’s tone and tactics, his supporters called Starling a “pretty little liar.” In short, Ehrhart and his men’s rights allies demonstrated they knew exactly what they were doing when they introduced a bill that would silence student victims. That seemed to be their consistent goal.
Ehrhart made clear what some other proponents of mandatory referral were perhaps too politic to say out loud: mandatory referral only promoted “due process” to the extent that it ensured no process. In Ehrhart’s mind, the fact that a school could punish someone for sexual assault was the problem that needed to be fixed. “It’s shocking to me that some think that you should be tried without due process, with some nonjudicial proceeding,” Ehrhart told a reporter. “You don’t get to do that with untrained college bureaucrats.” (University decision-makers are, in fact, required by law to be trained on adjudicating sexual harassment, which juries are not.) In other words, Ehrhart based his policy on the popular but utterly incorrect conviction that due process is only available through courts. His explanation reeks of obvious exceptionalism: he did not think schools should get out of the business of student discipline altogether. The following year, he made headlines for pressuring KSU to punish cheerleaders who took a knee during the national anthem to protest racial injustice.
Ehrhart was wrong, but his argument gained legitimacy from errors in mainstream discussion of campus sexual assault. Readers and voters, even sophisticated ones, were used to seeing discipline for sexual assault discussed as an entirely separate matter from student discipline overall. And they were used to seeing sexual assault treated as an inherently criminal matter, uniquely suited for cops. Armed with these broadly shared misconceptions, Ehrhart mainstreamed MRA ideology, with its dedication to treating sexual harassment claims as distinctively suspect.
The campaign was really a call for no process. “Due process” just sounds better.
WHILE EHRHART WAS the public face of House Bill 51, the intellectual and financial groundwork for mandatory referral legislation was done by organizations like the libertarian, Koch-funded FIRE and the national fraternity lobbying group perfectly known as “FratPAC.” These groups have long opposed campus discipline for sexual harassment and have worked alongside conservative allies to resist expanded Title IX enforcement. From the start, FIRE had led the charge against the Obama administration’s efforts to ensure schools’ compliance with Title IX, objecting both to the methods the Department of Education used and the standards it set. In public statements, FIRE was clear that its ultimate goal was not just to return to the state of Title IX enforcement as it had been under George W. Bush’s administration. Rather, it believed schools should get out of the business of disciplining students for sexual assault altogether, despite long-standing administrative and judicial requirements to the contrary. This was no secret. The organization explained that its “position [is] that police and actual courts of law—not campus administrators—should be investigating and adjudicating these serious crimes.”
Buttressing FIRE’s commitment was its sense that sexual assault on college campuses was a rare event. A 2011 article reposted in part on FIRE’s website declared that “Washington’s push to force colleges into taking a more aggressive stance is based on a highly inflated notion of an ‘epidemic’ of campus rape.” In 2020, during the coronavirus pandemic, a senior fellow at FIRE coauthored an article supposedly proving that sexual violence was rare on college campuses: if rape was rampant just like COVID-19, why had schools only closed down to stop the latter? (Some answers to start: the risk of sexual violence is no higher for college students than for their non-student peers, while campuses are set up for uniquely rapid spread of an airborne communicable disease. So leaving campus wouldn’t protect students from sexual assault but would protect them from coronavirus. Also, death is worse than rape.)
The argument about the rarity of campus rape was echoed by one of FIRE’s champions in the press, Emily Yoffe, who insisted that if sexual assault on campus was as common as research reflected, schools would sex-segregate their dorms. FIRE also heaped praise upon Northwestern professor Laura Kipnis’s book on campus “sexual paranoia,” which centered on a lengthy defense of one of the author’s colleagues. He had been accused, among other things, of pressuring a student to drink in order to force sex. But Kipnis thought “the story just didn’t add up” because “single non-hideous men with good jobs (or in this case, an international reputation and not without charm) don’t have to work that hard to get women to go to bed with them in our century.” That claim, made just a few months before Me Too exploded with stories of sexually violent celebrities, has aged poorly.
For FIRE’s partner FratPAC, the call to action on mandatory referral came in late 2014, after a series of fraternities and sororities were suspended at a number of schools, including Johns Hopkins, Emory, Clemson, and, in the wake of a now-debunked Rolling Stone article about a gang rape, the University of Virginia. Perhaps those punishments had something to do with the fact that fraternity members are three times more likely to commit sexual assault than their non-Greek peers. Regardless, by November of that year, the North American Interfraternity Conference, an umbrella organization for national frats, identified stopping organizational suspensions as a top priority. A coalition of Greek organizations developed a policy agenda that included mandatory referral and “deferral of any campus judicial proceeding until completion of criminal adjudication (investigation and trial)”—essentially House Bill 51. In other words, they would protect their members by making it harder for victims to report.
To add firepower to the effort, the groups recruited Trent Lott, the former Republican senator from Mississippi. Lott had once been Senate majority leader, but resigned that post after facing criticism for a glowing speech he gave at the hundredth birthday party of longtime South Carolina senator Strom Thurmond. In 1948, Thurmond had run for president on an explicitly white-supremacist platform, which included supporting racial segregation and using the banner of “states’ rights” to resist the civil rights movement. At Thurmond’s party, Lott declared to the attendees, “I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We’re proud of it. And if the rest of the country had followed our lead, we wouldn’t have had all these problems over all these years.” Now Lott was tasked with protecting frats’ rights.
Like Ehrhart, FIRE and FratPAC insisted that mandatory referral was necessary to protect accused students’ due process rights. Unlike him, FIRE and FratPAC kept their tone generally civil and made an effort to suggest their efforts were motivated by concerns for both the accused and the victims. To that end, they argued that rape is simply too “serious” a matter for schools to have any role. “We need to do everything possible to ensure our nation’s campuses provide safe environments for learning and growth,” wrote Lott and lawyer Cleta Mitchell in the Columbia Daily Tribune. “When a perpetrator has been found guilty by the school, the most serious punishment available is expulsion. But those who commit sexual violence should be prosecuted to the fullest extent of the law.” FratPAC partner Jean Mrasek explained to the Washington Post that “police involvement sends a strong message that sexual assault must be treated as the heinous crime that it is.… I think everyone will acknowledge that sexual assault is a crime, is a felony, and really, if you step back and think about it, what other felony do we allow a victim to evade police investigation by using the college conduct process?”
Of course, colleges investigate and discipline students for all sorts of conduct that is both a crime and a violation of campus codes. I mentioned earlier that the year before I started college, my school removed a student from campus after he repeatedly threatened to kill his roommate. Would it have been better for the university to throw up its hands and wait until a trial concluded before protecting the student body from a likely violent classmate? Notice, too, that even as FratPAC attempted to cast its push for mandatory referral as rooted in concern for survivors, it still depicted victims as untrustworthy, sneaky, and manipulative. In FratPAC’s telling, the victims are not choosing to pursue school remedies rather than criminal charges. They are “using” their school to “evade police investigation.”
One might ask if perhaps FIRE and FratPAC’s reasoning reflects misguided but genuine care about victims. But we should not be so credulous. These groups have consistently opposed policies that would aid survivors; in a series of legal briefs filed in 2020, FIRE admitted that its goal was not to balance the rights of victims and the accused but to advocate only for the latter. The more obvious explanation for these groups’ advocacy for mandatory referral, then, is that they, like Ehrhart, support the policy not in spite of its major flaws but because of them. (After all, if they did not think mandatory referral would depress reporting rates or otherwise preclude schools from effectively responding, there’s no reason for them to expect that it would in any way benefit students accused of sexual wrongdoing.) These groups likely judged that trying to amend Title IX to remove schools’ responsibility to address sexual harassment would be too heavy a lift. But a federal or state law requiring mandatory referral—justified as a procedural protection that is also responsive to the “seriousness” of the harm—could achieve the same result.
During the House Bill 51 debates, I wondered how these organizations, which generally have more mainstream credibility than Ehrhart does, felt about their comrade in arms berating his young opponents, many of whom identified as rape survivors. Perhaps they found him despicable. Or perhaps they were grateful he was willing to say exactly what they were thinking.
AFTER TRUMP’S ELECTION, Ehrhart was less worried about there being “no safe space for young men” on a college campus. For much of her time as secretary of education, Betsy DeVos was the least popular member of Trump’s cabinet, which is saying something. But the Michigan billionaire found a fan in Earl Ehrhart. During the fight over House Bill 51, Ehrhart and Steve Wrigley, the chancellor of Georgia’s public universities, traveled to Washington, D.C., to meet with DeVos. The three discussed, among other issues, Ehrhart’s legislative efforts to address what he saw as a lack of due process for college students accused of sexual assault. “Secretary DeVos is a breath of fresh air,” he later said. (DeVos also met with the National Coalition for Men, the group that publishes the names and photos of supposed “false accusers.”)
In truth, DeVos’s much-debated changes to school discipline procedures weren’t even the most important part of her Title IX regulations. The worst alterations were not about how investigations and hearings would proceed, but about limiting schools’ responsibilities to address sexual harassment at all. Readers will remember that the new regulations excuse schools from addressing harassment unless it is “severe and pervasive”—both the worst of the worst and repeated. Schools are no longer required to address harassment that occurred off campus, even if that means a victim has to share a classroom with their rapist. A school’s responsibilities are only triggered if the victim reports to the correct senior official. And even if the harassment was bad enough and occurred in the right place and the survivor knew exactly whom to call to report, the school is still only responsible for doing the bare minimum: as long as administrators are not “deliberately indifferent” to sexual harassment, they will be in the clear. “Ms. DeVos all but abdicates her department’s authority to hold schools accountable for violating students’ rights,” wrote Dana Bolger, my Know Your IX cofounder, shortly after the proposed rules went public. “American parents probably wouldn’t be happy to learn that. No wonder, then, that Ms. DeVos presents her proposal as defending the rights of the accused, rather than shielding institutions from liability.”
DeVos’s supporters showed their hand in their hysterical criticisms of an ACLU lawsuit challenging the new regulations, filed on behalf of a number of organizations including Know Your IX. The National Review, citing the importance of live hearings and cross-examination, bemoaned that “the ACLU is suing the federal government in the hope of weakening its due-process standards.” But the suit didn’t challenge the hearing and cross-examination requirements. It focused on DeVos’s substantive redefinition of what kinds of sexual harassment schools must address, and how much support they must provide victims. Aside from one provision related to evidentiary standards, the ACLU left all of DeVos’s procedural requirements alone. Yet the National Review saw the ACLU’s position as insisting that “men who are accused of rape [should be] discriminated against to the point at which their guilt is preordained.” A similar op-ed by two outspoken defenders of accused college men framed the suit as “the ACLU vs. due process,” even though the authors had to admit that, yes, technically, the lawsuit didn’t have much to do with process at all. Their critique only made sense if “due process” actually meant “freedom from accountability.”