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What’s at Stake in the Coming Title IX War

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What’s at Stake in the Coming Title IX War

Institute for Family Studies February 9, 2021
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In April 2011, an Assistant Secretary in the Obama administration’s Office for Civil Rights named Russlyn Ali sent a letter to college and university deans. The purpose of the letter, which began with the ostensibly courteous greeting, “Dear Colleague,” was to inform schools of the agency’s displeasure with the campus response to what it saw as a troubling “epidemic” of sexual violence and to give “guidance” about the procedures that institutions should follow to better protect students. 

Missives clarifying agency regulations are a fairly common, if tedious, form of bureaucratic communication in D.C., of interest to few people other than compliance officers, attorneys, and various institutional i-dotters. This one, however, vaulted into headlines and social media threads and eventually landed in the mud of presidential politics. Its blasé approach to due process rights for accused students made civil libertarians, various legal organizations, and some academic groups like the American Association of University Professors see red. In 2016, Republicans included annulling the letter’s guidance in their party platform. In fact, Secretary of Education Betsy De Vos rescinded it in 2017 and introduced more protections for college men—in almost every case, the complainant is female and the accused, male—being investigated for sexual misconduct. Now, a new administration will turn the worm again: President Joe Biden has promised to revive the 2011 letter with the larger goal of dismantling the putative “rape culture” of the nation’s college and university campuses. 

Before that happens, it’s essential to clarify just how much is at stake in what will surely be another chapter in the country’s endless culture war. If the problem raised by the letter were just finding a balance between addressing sexual assault and ensuring protections for accused students, it would be a difficult enterprise but one whose need would be widely understood. That’s not the case here. The 2011 letter is just one piece of evidence of an insidious, high-handed, and illiberal bureaucracy with far too much power over strongly disputed cultural questions. 

In a 2016 California Law Review article, Jacob Gerson and Jeannie Suk (now Jeannie Suk Gerson) hacked through the thicket of Congressional laws, agency regulations, guidance documents, letters, and clarifications to explain how we got to this polarizing moment. It started benignly enough in 1972 when Congress passed Title IX, an addendum to the Civil Rights Act prohibiting educational institutions from discriminating on the basis of sex. For the first several decades, Title IX stayed in its lane. Complaints made in its name alleged bias in admissions and financial aid, hiring and promotion, and athletic opportunities for women students. This was all as Congress must have imagined. But in 1997, the Office for Civil Rights (OCR) delivered the first of a number of “guidance documents” that would give Title IX the tentacles to reach well beyond what we ordinarily understand as discrimination. The documents announced that schools should include sexual harassment under the rubric sex discrimination. As such, Title IX required them to take to “immediate and appropriate action” to remedy the “hostile environment” and “atmosphere of sexual discrimination” (my italics) caused by the existence of harassment. In 2001, the OCR repeated the “guidance,” reminding schools that failing to put “effective procedures” in place meant risking federal funds.

The 2011 letter further bulked up the definition of sex discrimination and turned Title IX into the formidable bully it has become. Sex discrimination, and therefore Title IX oversight, Ali announced, would now include “sexual violence.” Rape and attempted rape, of course, are crimes—the responsibility of law enforcement. Nothing in the letter prevents the police from investigating such crimes when they are committed on campus, but OCR evidently also wanted a piece of the action. 

That stance was pernicious in two ways. First, by bringing sexual assault under the umbrella of sexual harassment and Title IX, schools could (and, as hundreds of suits brought by accused students did) deny protections ordinarily granted to someone accused of a crime. The letter warned schools against using anything other than preponderance of evidence standard, the lowest burden of proof, in determining the guilt of the accused. (Title IX itself says nothing on the subject.) It also “strongly discourage[d]” allowing the accused to question his accuser since this could be “traumatizing or intimidating” for the victim and could itself create a hostile environment. Also pernicious was muddying the distinction in the public mind between sexual violence, sexual harassment, and discrimination on the basis of sex. Since no university was willing to look less than vigilant about campus violence, administrators stayed closed-mouthed in the face of what looked a lot like a gratuitous bureaucratic power grab. 

That the OCR was using Dear Colleague letters and other “nonbinding” missives to expand its Title IX purview confirms the perception of bureaucratic hubris. Normally when a government agency introduces new regulations, they are subject to review under the Administrative Procedure Act (APA). The Act, whose purpose is to block “arbitrary and capricious” actions by federal offices, allows comment from interested parties and facilitates debate over rules of questionable constitutionality. Dear Colleague letters, on the other hand, are free of APA oversight. Strictly speaking, they are also “nonbinding,” but a looming threat of investigations, damning publicity, and worse, a loss of federal funding ensures that campus administrators, a group not known for risk-taking, will comply. As Nick Wolfinger has noted on these pages, a federal compliance review alone can cost hundreds of thousands of dollars.

Still, there was a deeper reason the nation’s institutions of higher education didn’t speak up against federal interference. Understanding that reason requires a brief detour back to a not-so-distant past when residential colleges and universities were expected to act “in loco parentis” for young people in that modern netherworld between adolescence and adulthood. When I was a freshman at Vassar, an all-female college with a studious reputation at the time, we had to sign out if we were going off campus and follow strict night curfews regardless of where we were going. A professor, his wife, and young daughter lived in an apartment in the building and ate meals with us; they weren’t really authority figures, but they were adults and a reminder of a reality outside our post adolescent ghetto. Men were not permitted beyond a waiting area in the “hall;” and heaven forbid they should come anywhere near our bedrooms. The Vassar powers-that-be were not Aunt Lydia sort of fanatics; paternalism of this sort was ubiquitous, unapologetic and, until the mid 1960’s, largely unquestioned. 

The in loco parentis regime fell with remarkable speed. With courts giving free speech and other constitutional protections to students, the birth control pill becoming an accepted fact of adolescent life, 18-year-old men being forced to risk their lives in a war in a country most of them couldn’t find on a map, paternalism seemed not just quaint but absurd. Meanwhile, second wave feminism was freeing women to view sexual enjoyment as not only their right but a fundamental part of authentic self-discovery. Who were colleges trying to protect by separating the sexes? And from what? In short order and with few exceptions, single-sex schools became co-ed (Vassar began accepting men in 1969) and mixed-sex dorms and bathrooms soon followed. Today at some schools, male and female students can share dorm rooms on request. 

Now, 18-year-olds wave goodbye to their parents and lug their laptops and gear into dorms filled with strangers of both sexes. Close to half of this age group are virgins, and much of what they know about sex comes from peer gossip and voluminous hours surfing Pornhub. Their new digs provide them with potential sexual partners in the room next door and up and down and across the hall, not to mention in the next bathroom stall. And—best of all—there are no adults in sight. What could go wrong? 

The problem wasn’t just that the dorms went co-ed or that in loco parentis collapsed, it was that all the implicit scripts, customs, and moral intuitions associated with the old regime buckled as well. New college students had to figure out for themselves what was appropriate courtship behavior. If a student was attracted to someone he met at a party, what was supposed to happen? Dancing, talking and flirting? Should he ask her for a date or should he wait for her to make the first move? Or should they just skip the lame formalities and head off to one of their bedrooms? What should they expect there? Kissing? Sex? As complaints from women about disturbing sexual experiences, some of them violent—others more ambiguous—multiplied, and college administrators fumbled, the government, waving its Title IX grievance procedures and regulations, rushed in. 

In short order, every campus had a Title IX coordinator, most of them professors or administrators with other responsibilities. But in a 2015 Dear Colleague letter (also rescinded), OCR clarified that all schools had to have at least one full time coordinator or, better yet, “multiple coordinators” responsible for overseeing complaints and training for staff, faculty, and students. An explosion of OCR investigations had followed the 2011 letter, many of them initiated even though no complainant had come forward. Unsurprisingly, universities went on a hiring spree. Journalist Emily Yoffe, who has done extensive research on Title IX mischief, tallies some of the absurdities. Harvard has over 50 Title IX compliance coordinators. “Wellesley College, an all-female campus, has a full-time coordinator to oversee sex discrimination,” she writes, “Ozarks Technical Community College, which has no residential facilities and has had one report of sexual assault since 2013, now has a full-time Title IX coordinator.” 

The upshot is a byzantine web of federal agencies, laws, regulations, guidance letters, state laws, and Title IX offices now in the business not only of protecting students from rape and discrimination, but, as Gersen and Suk put it, of regulating “ordinary desire.” The 2011 Dear Colleague letter had “encouraged” colleges to be “proactive” against sexual violence through student training sessions and educational materials used to prescribe what the public health world calls “positive and healthy behaviors.” Violence Against Women Act regulations require schools to provide “awareness programs for all incoming students” that will “foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe directions.” The hyper-rationalist-quasi therapeutic language of the sex bureaucracy often lapses into rhetoric of the gender studies classroom. The CDC’s (ostensibly medical) account of the “risk behaviors” common to students who might be inclined to sexual violence includes “exposure to sexually explicit media,” “preferences for impersonal sex," “adherence to traditional gender role norms, and hypermasculinity.” 

The irony is that the paternalism of the new regime easily matches that of the in loco parentis days. “From authority, there is no escape,” the eminent social theorist Phillip Rieff once wrote. Today’s authority is remote, arbitrary and out of touch with human, especially late adolescent, realties. The OCR defines sexual harassment as “any unwelcome conduct of a sexual nature,” (my italics) including “verbal conduct.” Students used to rapping along with Megan Thee Stallion risk the ire of administrators who risk an investigation by the federal government for “making sexual comments, jokes, or gestures,” and “displaying or distributing sexually explicit drawings, pictures or written materials.”

A guy who has sex with a shy but seemingly willing female partner who later regrets the episode can be investigated for sexual assault—if consent was not “enthusiastic,” “imaginative,” or “informed,” to cite some of the confusing words used in university educational materials. The University of California at San Diego explains that “consent is about understanding what a partner is feeling.” As Gersen and Suk note, a UC student brought a complaint against a partner because she later regretted their sexual encounter, though she had not objected at the time: she “physically wanted to have sex with Ryan but mentally wouldn’t,” as she told investigators. He was suspended for “nonconsensual sex,” which a prospective employer looking at his academic record might well assume was rape. The only bright side of this sad episode is that Ryan later sued the school in state court and won.

The Biden administration promises to “empower and protect young people” by broadening Title IX powers. What it will really be doing is empowering an overweening and remote bureaucracy to try—and undoubtedly fail—to shape the sexual norms of future generations.  

This piece originally appeared at Institute for Family Studies

______________________

Kay S. Hymowitz is the William E. Simon Fellow at the Manhattan Institute and contributing editor at City Journal. She is the author of several books, most recently The New Brooklyn. Follow her on Twitter here

Photo by Aaron Hawkins/iStock

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