This week, a fellow alumnus asked me whether we can reasonably advise our daughters to attend Yale. This is a very good question.  The overwhelming theme of the Kavanaugh nomination is clear: the behavior prevalent among certain students at both Georgetown Prep and Yale is deeply disturbing. There is unquestionably a culture of impunity among elites. Yale’s name has come up too many times in connection with this claim.

If you are from a developing country like I am, Yale is not an outlier. Institutions in the developing world rarely hold elites accountable; there is very little that elites cannot get away with. This includes rape. Indeed, it was precisely for this reason that those of us who are watchers of “Third World” politics, as we still say in Jamaica, were struck when the former South African President Jacob Zuma was charged with rape in 2005.

But what happened to Jacob Zuma is not happening to Judge Kavanaugh. No reasonable person expects the accusations against Judge Kavanaugh to ever be tested in a court of law. The only question is whether he will be promoted to the Supreme Court. Institutions in the United States are looking more and more like those in a developing country.

In the last week, we have heard people say out loud what was previously whispered. If you are a white suburban teenage boy, you can sexually assault a teenage girl as long as you play by the rules. What are the rules? Go to Yale for undergrad. Go to Yale Law. Get a fancy job. Coach your daughter’s basketball team. Then when you are accused of “teenage horseplay,” we will reflect on your “contributions”  and state what a pity it would be to derail your promising career. In Jamaica, we have a term for outrageous but ultimately forgivable behavior: We call it “youthful exuberance.” Americans refer to it with the phrase “boys will be boys.”

When discussing the complicity of elite institutions, one can hardly fail to mention the Kozinski affair. Prior to spiriting off into the night following accusations of harassment, Kozinski was a well-known judge whose clerkship was prestigious. Indeed, Kavanaugh clerked for Kozinski. If media reports are accurate, at least one Yale law professor knew that Kozinski’s chambers constituted a hostile environment. The professor reportedly advised female students of Kozinski’s reputation, then let them decide whether to apply to his chambers, presumably with the professor’s formal recommendation. Why put this burden on female students? How could a professor knowingly send a student into the den of a harasser? It is this sort of revelation that leads my friend to wonder whether she should be advising her daughter to attend Yale. The only reasonable response from the professor would be to refuse to write letters for any student, male or female, seeking a Kozinski clerkship.

Thankfully, some very courageous Yale Law students are setting an example for their professors. As they have pointed out, complicity was never a defensible response. As professors, we need to do more than simply avoid complicity. We need to use our power to break this culture of impunity. Society uses “Yale Law School” as a shorthand for excellence and, by extension, trustworthiness. Given my own background in the developing world, I think that this is a mistake. But the fact remains that elite status and trustworthiness remain connected in the public imagination. It is for this reason that Kavanaugh took the time to underscore that he had graduated from Yale.

Elite designations have gatekeepers. If you acquired them, it means that your record has been reviewed by people who are experts at screening. This, of course, is false. Most professors typically have no idea whether a candidate that they recommend has a history of violence. God forbid that years later the candidate ends up as a Supreme Court nominee.

Economists call this an information asymmetry problem: we do not know who the predators are among us.

We have the power to change this default position of ignorance. Senator Mazie Hirono asks each and every nominee whether they have ever been accused of sexual misconduct. Yale needs to follow suit. Yale needs to require applicants to state affirmatively that they have never been accused of sexual misconduct.

The message will be clear. If it is later found out that they lied, this may be the basis of exclusion from the elite club that they worked so hard to join.

The point of this proposal is less about actual exposure of sexual predators, though a few prominent exposures will surely reinforce the point. The point is to change the balance of power. For example, if Kavanaugh did in fact commit assault, he might have thought twice if he knew that his victim had the power to derail his Yale application. It will also create an incentive for those accused to cooperate with the authorities, if they believe themselves to be innocent.

This proposal will go a long way to undermining rape culture. Outrageous high school yearbook entries and quips like “what happens at Georgetown Prep stays at Georgetown Prep” will slowly but surely disappear. If the stakes are high enough, teenage boys will self-police.

Yale is surely not the only institution with these challenges. But given the current national focus on Yale, it has a responsibility to lead the way. Yale needs to recognize the urgency of the current situation and implement this proposal right away, including at the Law School. Yale has a debt to pay: this is the minimum that it owes to Yale students, Yale women and the country, given its extraordinary record of sending its students into positions where they exercise extraordinary power.

Eleanor Marie Lawrence Brown is a Professor of Law and International Affairs and a Senior Scientist at the Rock Ethics Institute at Pennsylvania State University. She attended Brown University and the Yale Law School. She was a Reginald Lewis Fellow at Harvard Law School and a Rhodes Scholar at Oxford University. Contact her at eub226@sia.psu.edu .

  • HansC

    “Yale needs to require applicants to state affirmatively that they have never been accused of sexual misconduct.”

    And if the accusations are *false*? Additionally, is there even a legal definition of “sexual misconduct” (as opposed to rape or sexual assault, for example)?

    If a member of the 2006 Duke men’s lacrosse team should apply for graduate admissions at Yale, should he be required to rehash the concocted accusations leveled against himself and his teammates?

    I’m no fan of Kavanaugh, and he certainly should be rejected based solely on his extreme right-wing ideology and past political activity if nothing else. But although I never attended law school, I believe there is this little thing called “innocent until proven guilty in a court of law”.

  • Nancy Morris

    It is true that “the overwhelming theme of the Kavanaugh nomination is clear,” but it is not the theme identified by this author. What is clear is that far too many people, especially on the left, believe that when they are in a state of political virtue they are entitled – even obligated – to advance their political agenda by lying and professing to believe others who clearly lie or exhibit serious and classic symptoms of unreliability. And, of course, they always believe themselves to be in a state of political virtue.

    This infection of the body politic has induced a malicious fever with respect to the nomination of Kavanaugh. His appointment to the Supreme Court is quite correctly perceived by the left as certain to lead to the dismantling of many of the Court’s precedents particularly dear to those on the left. The resulting outrage, held to be political virtue by those sharing it, has led to the emergence of four accusers of Judge Kavanaugh, each of whom bears a tale grossly lacking in all indicia of reliability. The reliability of Christine Ford’s account, for example, has been eviserated by the Arizona prosecutor who questioned Ford before the Judiciary Committee. Every line of the prosecutor’s memo summarizing the huge gaps and inconsistencies in Ford’s testimony, published in the Washington Post, is cringe inducing for anyone relying on her. There is Deborah Ramirez, who herself described to the New York Times the haziness and uncertainty and alcohol-afflicted nature of her account, and many Yale classmates have come forward pointing out its wild improbability, but no real corroborators. There was an anonymous letter, promptly debunked by the supposed “victim” described in it … now a federal judge. And then there are insane ravings under oath by a woman with a bizarrely checkered past and no corroborators, despite the best efforts of the best journalists to find some. Even CNN admits there is no contemporary corroborating evidence of any of this.

    Yet many Yale students claim to “believe” these people, describe them as “brave” and “victims.” The savage damage they inflict on Judge Kavanaugh, the confirmation process and the Constitution is ignored. The lesson in this ought to be: Next time, don’t nominate for president a person presenting a thirty year crime spree (cattle futures, anyone? how about intimidating all those bimbos and “destroying their stories,” as Hillary put it?) as an inspiring political career, zero political charisma and a superabundance of resentful entitlement. Instead we get “believe the women,” except that nobody really does believe these particular women. And we get endless political frustration. It’s Hillary’s fault, and the fault of those who allowed themselves to be suckered by her. If only we had NOT believed that particular woman, we very likely would not be in this position today.

    But lying and pretending one believes lies is not the answer. Sexual predators should be held to account. But so should felony perjurers, defamers, character assassins and those who willingly sacrifice their critical and moral faculties in the service of political agendas.

    • CharlieWalls

      Wow! You missed a few details but run true to form.

  • ShadrachSmith

    Yale could give free tuition. Might cut down on administrative staff, but it is definitely doable. Students could protest for free/lower tuition. Or protest Kavanaugh. Ask your advisor.