Harvard law professor Jacob Gerson landed a big soapbox at the Wall Street Journal for his op-ed. As he teaches admin law, it’s hardly surprising that the focus of his post was the technical requirements of an administrative agency ignoring the procedures mandated by law for the creation and imposition of its rules and regulations. Hammer, nail, stuff.
In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault.
Whether there is an “epidemic,” an oft-repeated word that has become part of the untouchable myth of the problem, is highly debatable, both in terms of what constitutes rape and sexual assault, and whether it’s happening or perceived by those who conflate feminist politics with criminal conduct, stealing very serious words untethered from meaningful definition.
And indeed, there is a “genuine question” of whether the DoE has exceeded its legal authority. But the failure to use the requisite administrative procedure, though certainly a very real flaw, is but one flaw, and likely the least significant one. After all, had the agency not unilaterally rammed its “guidance” down the open mouths of universities, and instead employed the required notice and comment before crafting its rules, would the outcome have been different?
That Gerson, standing atop the WSJ’s huge soapbox, used it to pitch his issue is understandable. But that doesn’t make it any less a waste of opportunity, because almost everyone, from advocates to politicians, has overlooked the most basic question.
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 assistance.
Its express language bans discrimination in education on the basis of sex. There is no mention of rape or sexual assault, and at the time of its passage, it would have been absurd to suggest that it was meant to give rise to a cottage industry of colleges adjudicating allegations of rape between students.
The notion began with a then-Yale law student, Catharine MacKinnon, suing to pursue her radical feminist theory that discrimination against women could be premised on a woman being compelled to face her rapist on campus, and the trauma of that experience could deprive her of educational benefits. In the course of the suit, a motion for summary judgment was made, and denied, producing one sentence by a district court judge:
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 sentence opened the door to consideration of MacKinnon’s theory. It carried no precedential value, and was never appealed. No higher court ever considered whether this sentence was legally correct. And the judge who wrote it, District of Connecticut Judge Janet C. Hall, did not hold that this novel interpretation of Title IX’s reach was the law, but only that a reasonable jury “could conclude,” meaning that it was not so unreasonable as to preclude, as a matter of law, the case going to trial.
MacKinnon’s theory was that in order for a woman to have unfettered access to the educational opportunities provided under Title IX, they had to have the ability to take advantage of the school’s educational offerings without the fear and trauma of having to see or interact with their attacker.
There are several steps, big, huge steps, perhaps better described as leaps, necessary to get from Point A, the language of Title IX, to Point X, that colleges were thus authorized to become quasi-criminal courts, adjudicate complaints by women of sexual assaults, and then remove these villains from their campus so that women could enjoy the educational benefits offered.
Initially, sexual assault is not discrimination on the basis of sex (which, had Title IX been enacted today, would use the word “gender,” given the transitory language distortions that have arisen between then and now). Sexual assault can happen between two people regardless of their gender, or gender identities, and presents an entirely different issue. Nor does the prefix of “sexual” alter the claim, as any assault, using the actual definition of the word, distinguishes the concern, as the same potential traumatic effect would apply.
In other words, neither assault nor sexual assault implicates Title IX’s prohibition against discrimination any more for women than anyone else. Regardless of the extent of the problem, it is not a problem that directly implicates gender discrimination any more than any crime that can happen between any two people, which can include one male and one female, magically morphs into gender discrimination when it occurs under that one of many potential scenarios.
But even so, there is yet another, insurmountable, leap required by MacKinnon’s theory. Even assuming that colleges completely ignore that sexual assault is not exclusively a male/female issue, the implication of Judge Hall’s sentence is that once a person is found, under the extant law, to be an attacker, then, and only then, does a duty arise by the college to take action to protect a woman’s unfettered access to educational opportunities.
In other words, if there is a claim that a sexual assault occurred, the required first step is that a court of competent jurisdiction reach a conclusion, as required by law and with the same due process that would apply in every instance of determining whether a crime occurred and the accused committed the crime.
There is nothing in Judge Hall’s sentence to suggest that the conclusion that there is a victim and attacker has been usurped from the normal legal process and placed in the hands of colleges to determine using whatever methods they conjure up, with the unauthorized “guidance” of the DoE Office of Civil Rights. There is nothing in there to approve of subconstitutional methods to shortcut the legal system and create administrative guilt, whereupon they create their own duty to rid their campus of the attacker.
The argument in favor of the creation of campus adjudicative systems (ranging from the single investigator model where one administrator, who has been “trained,” which is a euphemism for indoctrinated, plays judge, juror and executioner, to student/faculty disciplinary boards, where there is neither competence in process nor substance) is that the “real” legal system takes too long and fails to appreciate the myriad excuses for the lack of evidence and failure to behave appropriately in raising issues and demands adherence to legal elements of an offense, rather than vague feelings in lieu of proof.
In other words, the legal system fails to suffice, because it won’t sentence first and adjudicate guilt later and with certainty of outcome. The campus adjudication system is not merely swift and certain, but creates the wrongdoer that the MacKinnon theory would require them to address. In court, until there is proof of an offense and that the accused committed it, there can be no redress, no punishment.
But nowhere does Title IX give rise to colleges creating their own system to adjudicate the occurrence of an offense, or who committed the offense. While there is no authority under Title IX to address sexual assault as if it was gender discrimination at all, even if there was, it would come after a court determined the critical facts and conclusions necessary to fix a predicate for the ultimate duty to maintain a campus atmosphere where no women felt fear or concern that impaired her right to enjoy the educational opportunities offered.
The fundamental flaws, the disconnect between the law as written, the law as held, have managed to elude many. The discussion has leaped over these basic issues, taking for granted that colleges have any business under Title IX playing at a half-baked legal system to condemn students as rapists. There is no basis in law to reach other concerns, whether of administrative rule-making propriety or how much due process a student deserves, until one surmounts the problem that Title IX does not authorize colleges to be in the rape-finding business in the first place. This cannot be forgotten. This should not be ignored, especially when the issue is discussed on a big soapbox like the Wall Street Journal.