There is a battle being waged in Congress over a law called the Safe Campus Act, which is intended to restore a measure of due process to campus sexual assault and rape adjudications. It would blunt the efforts of the Department of Education’s Office of Civil Rights to turn its mandate under Title IX into an overarching requirement to eliminate all vestiges of a sexually hostile environment on campus.
Organizations like FIRE are all for it. College rape victim advocacy groups are vehemently against it. What hasn’t gotten much attention is how a law, enacted in response to women being denied the opportunity to engage in college sports, morphed into a quasi-criminal rape law.
Title IX, 20 U.S.C. § 1681(a), provides that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial
It’s a broad law, relatively uncontroversial on its face, which addresses sex discrimination. What’s not to like?
But then a Yale law student with a rather radical sensitivity to sex discrimination decided to push the law to its limit.
Catharine MacKinnon was a law student at Yale University in the mid-1970s when she had a radical idea: Sexual harassment on campus was discrimination, and it interfered with a woman’s ability to attend college. MacKinnon would put that theory to the test in a court case that her side would eventually lose, but that would have far-reaching effects.
The case, Kelly v. Yale (a motion for summary judgment by Yale) which eventually was settled without reaching any higher court, included this sentence in an otherwise losing effort.
The court agrees that a reasonable jury could conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.
This line, by District of Connecticut Judge Janet C. Hall, gave birth to the notion that Title IX requires colleges to protect rape victims from “sufficiently hostile environments,” though a careful reading doesn’t quite say that. Rather, Judge Hall concluded that it could not be said, as a matter of law, that it would be impossible for a reasonable jury to find that “encounters . . . between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities” protected by Title IX.
And what did the Second Circuit Court of Appeals have to say about this? Nothing, as the case died before it got there.
But this gave rise to a cottage industry of campus rape adjudication, although Judge Hall’s language suggests something very different. Notably, Judge Hall speaks of the plaintiff as a “rape victim.” There is no issue in the case of whether Kelly is, in fact, a rape victim, and how that conclusion is reached is not in issue.
No judge suggested that the characterization “rape victim” was a matter for universities to decide on their own. Indeed, it may be based on an admission by the putative rapist that he did, in fact, rape Kelly. Or it may be based upon a criminal prosecution in which guilt was established. Nothing in there suggests that it be left to colleges to decide.
Rather, Kelly v. Yale, to the extent it’s of persuasive authority, as it clearly has no precedential value, speaks to what may reach the level of responsibility of a university after a determination that a rape has occurred.
Of further significance is that Judge Hall’s holding does not suggest that every feeling of hostility gives rise to a duty on the part of the college to remedy it. Rather, it says that it may, if sufficient, create a hostile environment. What constitutes sufficiency isn’t said, but by dint of the word “sufficiently,” Judge Hall makes clear that some conduct is insufficient to elevate a student’s sense of hostility to the level necessary to require remediation.
Then came the Office of Civil Rights’ embrace of a radical vision of the college environment in its “Dear Colleague” letter, threatening to deny federal funds to colleges that didn’t adopt its view of Title IX at its most expansive, well beyond anything ever decided by a court.
Lest it be unclear, OCR is authorized to administer Title IX, a law duly enacted by Congress. It is a finger of the Department of Education, an arm of the executive branch, whose role is to administer laws. It cannot write laws. It cannot create laws. And while it has the power to regulate laws duly enacted, OCR’s grand vision has never been subject to the regulatory process. It simply appeared in the Dear Colleague letter, and its follow-up letters, created out of an idea by the office-holders that this is what they want the law to be.
As the debate rages over how colleges should adjudicate campus rape, covering everything from the process and standards to be applied, the presumptions and excuses to become inherently accepted, and the consequences for those deemed to be guilty of whatever it is that OCR says is an offense, its basis has been an expansion of Title IX jurisdiction far beyond anything the law requires, the law enables, the law authorizes.
There is no legal authority that gives rise to a college or university establishing an adjudication procedure for criminal conduct separate and apart from the criminal justice system. That OCR says so, upon pain of denying federal funding, without having employed the regulatory procedures needed to obtain the authority, seems to have flown over everyone’s head.
While colleges have no reason to challenge this scenario, and most happen to embrace the underlying progressive gender politics reflected by the Dear Colleague letters, unless and until the Department of Education actually pulls the plug on their federal funding — something that has never actually happened to any college or university — they have chosen the path of least resistance and allowed students to bear the brunt of a radical gambit by Catherine McKinnon that, over the past three decades, has finally slipped down the slope enough to be blindly accepted.
And this is why there’s a battle over campus rape adjudications.