An Official Fantasy of Title IX

The applause from the cheap seats couldn’t be missed.  There is a report, from no less an august body than the American Association of University Professors.  And for the first time in recent memory, the report didn’t gush about the need to do everything possible to end the plague of campus rape and hate speech.

That’s why there was applause. Woo hoo!

As a result of committed student and faculty activism, the topic of sexual harassment and assault within universities1 has entered the national spotlight. Renewed attention to these problems has been met by a federal push to establish universities’ compliance with Title IX of the Education Amendments of 1972.  Yet Title IX’s track record has proven to be uneven. Success stories about compelling universities to address problems of sexual assault, such as those recounted by student campus groups,3 are matched by reported cases in which university administrators fail to punish gross and repeated sexual harassment, or where Title IX administrators from the Department of Education and within the university overreach and seek to punish protected academic speech. These cases have compromised the realization of meaningful educational goals that enable the creation of sexually safe campuses; they also have upended due process rights and shared governance in unprecedented ways. [Emphasis added.]

Ignore all those other words, and just focus on the ultimate clause.  And in fairness, the fact that the AAUP even raises questions about due process and shared governance is remarkable. 

But to get there, the report runs through the “history and uses” of Title IX before it gets to the “abuses.”

Sexual harassment is not mentioned in the Title IX legislation itself, nor in Titles VI and VII. The first judicial recognition that sexual harassment constituted a form of sex discrimination came in 1977, when the D.C. Circuit Court of Appeals held that Title VII applied to a claim alleging that a supervisor sought sexual favors from an employee seeking promotion. That same year in Alexander v. Yale University, the federal Second Circuit Court of Appeals allowed a case to be heard in which sexual harassment was claimed as a violation of Title IX. The court ultimately found that the plaintiffs failed to prove their case, but the recognition of sexual harassment as a form of sex discrimination remained in place.

Well, a case citation and everything. That’s enough to make it real, right? Except the circuit didn’t hold anything of the sort.  This was part of Catherine McKinnon’s effort to convert Title IX into a weapon by which feminists could cut the throat of colleges that failed to capitulate to their demands, and their demands were to create an educational environment where their feelings controlled speech and conduct. But you would think from the AAUP report that the women prevailed. They didn’t. They crashed and burned, just as they did in the district court.  Just the opposite of what the AAUP report suggests.

A logical prerequisite is that there be a sufficiently defined wrong under the statute invoked, and claims for relief adequately presented by the parties plaintiff. In this regard, it should be stressed at the outset that while the complaint deserves generous reading, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), the question is not so much the customary one on motion to dismiss whether plaintiffs could conceivably prove facts calling into play an established right of action as instead whether any circumstance depicted genuinely impels judicial creation of a new suit right, cf. Turpin v. Mailet, Civil No. N-75-181 (D.Conn. May 13, 1977). Such an approach is surely also consistent with Title IX’s aims, for the statute is clearly addressed to specific practices of exclusion, inequitable resource allocation and similar concrete abuses. So viewed, most claims advanced in this action are tenuous indeed.

Because the court didn’t completely foreclose any possibility of a viable claim, the holding has been twisted into a win. See? They didn’t call us totally batshit crazy, so that means WE ARE RIGHT!!!  Not quite.

Some in the cheap seats are willing to forego criticism of the myth surrounding Title IX, turn a blind eye to the shockingly false history propounded by the AAUP and allow it to meld into the fantasy that Title IX supports the Department of Education, Office of Civil Rights, imposition of its will on higher ed, even though it means males are sacrificed on the altar of female tears.  After all, at least the report came out in favor of due process, right?

Well, kinda, except not for you.

Since 2011, however, the emphasis has changed. OCR now conflates conduct and speech cases. The OCR’s 2011 Dear Colleague Letter (DCL) broadly defines sexual harassment under Title IX as ranging from the most serious conduct of “sexual violence” (including rape, sexual assault, sexual battery, and sexual coercion) to speech-based hostile environment. Further, while the 2011 DCL focuses on student-on-student sexual violence, it adds that the same principles of enforcement will apply to all types of sexual harassment cases, which include speech or conduct of a sexual or non-sexual (but gender-based) nature. [Empasis added.]

Foreshadowing, kids. While there is mention of the elevation of the need to silence all speech that hurts feelings, whether for real or in theory, and the deprivation of due process in general, the focus of the report, and its detailed complaints, are directed toward how Title IX affects the AAUP’s interest group, professors like Laura Kipnis, academic freedom and, significantly, university governance.  Hat tips are included to student newspapers defunded for “hurtful” satire, but they’re not going to war over principle. So what is the point of this report?

The answer depends in part on what counts as sex discrimination–particularly what conduct or speech (and in what amounts) can support a charge of hostile environment. While financial cuts and program eliminations have threatened entire disciplines and methods of producing knowledge, struggles over the importance and scope of academic freedom v. sex discrimination have also flared across campuses nationwide. From trigger warnings to tweets, the AAUP has documented an increase in potential threats to the academic freedom that protects teaching, research, and extramural speech, and fosters shared governance by university administrations, students, and faculty.

It’s hard to blame the AAUP for seeing the world through the enlightened self-interest of their members. Hell, isn’t that the way police unions have enjoyed PR success? But the conflicted approach, that incorporates the total fantasy of a Title IX that commands that the academic world revolve around feelz because the law says so, is in there next to their deep concerns that it went too far when it touched their members.  And it leaves the rest of us still holding our own, fantasy world largely intact but for their call to leave professors out of the otherwise critical war to end campus sexual harassment.


20 thoughts on “An Official Fantasy of Title IX

  1. mb

    Sure, if the goal was to stop all the harassment that’s keeping women out of colleges, it would be bizarre to suggest that profs should get any different treatment. But if the goal were to create a culture of lawlessness, then it would make perfect sense to exempt the most influential, most educated group of people who might otherwise object from any unintended consequences. It’s becoming so familiar, it’s like I read about the exact same thing, earlier today, on this same blog.

      1. mb

        Possibly, but when bare accusations of wrongthink carry as much coercive force and inspire as much genuine fear as does actual violence, I don’t think it has anything to do with me.

  2. Lucas Beauchamp

    The main problem with the AAUP’s description of the Alexander case is that it confuses the district court’s and the second circuit’s rulings. In 1977, the district court did hold that one plaintiff in the case stated a claim under Title IX by alleging that her professor offered to raise her grade from a “C” to an “A” in exchange for her favors. It dismissed three plaintiffs who claimed only injury to their feelz from hearing about harassed women and two others who didn’t seek damages and whose graduation mooted their prayer for an injunction.

    So the district court, not the circuit court, did hold in 1977 that a claim of sexual harassment could go forward. It then found at trial that the alleged harassment never happened. On appeal in 1980, the circuit court affirmed the dismissal of the five plaintiffs and the judgment against the sixth. That court did state that that one plaintiff’s allegations “presented a justiciable claim for relief under Title IX,” but, because it affirmed on the basis of the evidence at trial, its statement was dictum.

    1. SHG Post author

      You’re doing what many have done, conflating a discrete act involving sex for grade with the vagaries of a free-floating sexual harassment claim under Title IX. You realize that’s not the case, and I don’t think you mean to do that, but your recitation is poorly framed and explained. It lends itself to a gross misapprehension of the decisions, both at district and circuit levels. People seize upon what they want, even if it’s a complete misunderstanding of the law. Much of the confusion today is because of this. Don’t contribute to the confusion. Don’t make people stupider.

      1. David

        IANAL. I read Lucas Beauchamp’s comment, and then I read yours. Then I read Lucas Beauchamp’s comment again. The first time, I got the impression that he was saying the opposite of what I read after your explanation. It’s amazing how a little insight can completely change the takeaway, and how easily something can be completely misunderstood.

        1. SHG Post author

          It’s often hard for people to see how their writing will look to other people’s eyes. It makes a huge difference, as you found out.

      2. Lucas Beauchamp

        I’m mystified about what made my recitation “poorly framed and explained.” Should I have gone into detail why, as the district court said, “most claims advanced in this action are tenuous indeed”? Yes, the case did involved just one type of sexual harassment, but the district court did allow it to go forward.

        You may not like it, but it’s a little late in the day to maintain that sex discrimination under Title IX does not cover student-on-student sexual harassment and sexual assault. See [Ed. Note: Citation deleted.] (2007). But nothing in Title IX requires a Star Chamber in which the accused cannot cross-examine the complainant or find his own witnesses, requires that her personal feelz determine the standard for harassment, or puts the blame for drunken sex on the male.

        1. SHG Post author

          I gave you the benefit of the doubt of writing inartfully, rather than being a shitty lawyer or an asshole. Not only do you respond by exacerbating your cluelessness, but you then throw in a cite to “prove” your point which compounds the problem. That leaves me in the position of either letting your lack of grasp of law go unresponded, which means other readers may mistakenly think the case stands for the proposition, or I have to explain why it doesn’t.

          The law is filled with opinions that throw around vague words inadvertently, so that shitty lawyers will grasp at them without realizing their error and perpetuate the error. You conclusively proved that I was too kind in giving you the benefit of the doubt. It doesn’t become my obligation to undo the stupid every time someone compounds the problem. The problem, Lucas, is that shitty lawyer and asshole aren’t mutually exclusive.

          Since I have too much regard for the accuracy of the law, and won’t be compelled to explain to you why the case you cite doesn’t stand for the proposition you think it does just because you throw a errant cite into a comment, you’re too high much effort for no return. That’s what I get for being nice to you.

        2. mb

          Imma help you out, coz I literally have nothing else to do right now. This ain’t a courtroom, and the general public that reads here don’t all have a cogent theory of how to interpret statutes. Taking a look at Title IX, it says fuck all about harassment. Somebody who had never read Title IX, but had read your comment would be likely to think that either 1) Title IX is explicitly about harassment or 2) The case you’re talking about sets forward a specific standard for finding a school to be in violation of Title IX due to someone having been harassed by someone else, and is binding precedent. Neither of these things are correct, and it is bad to make people more stupid, ergo, Scott isn’t very happy with you.

          1. SHG Post author

            As he’s gone from inadvertently wrong to aggressively wrong, he’s crossed the line into deliberately making people stupider. That’s a line I won’t tolerate. To say I’m not very happy is an understatement.

            1. mb

              Well, I got a soft spot for people who are “mystified”, even when they are excessively defensive. He can take it or (more likely) leave it.

    2. mb

      The word “dictum” is a phallocentric microaggression, especially when you leave it dangling off the end of your comment. Check your privilege, shitlord.

      1. Patrick Maupin

        Phallocentric? Sure. The law adapts slowly.

        Micro-aggression? Nah.

        “Dictum” accurately captures full-on judicial aggression. You may be confused into thinking it is a micro-aggression because of the frequent appearance of the word “mere” in front of it, but in this instance, “mere” does not mean “small”.

        Rather “mere” means “only”, but in relation to the current case, not any previous one. It may help to think of the phrase “mere dictum” as being in future perfect tense — it does not mean that a referenced similarly situated party “only got dicted” but is rather meant to suggest “that is terrible reasoning, and following it will only insure that my client is completely dicted.”

          1. Patrick Maupin

            Because I turned 13 for the 43rd time today?

            I was hoping for a pony to terrorize Ken with, but all I got so far is a pair of sneakers. Kind of anti-climactic for my last birthday that will fall on Easter.

          2. Osama bin Pimpin

            I did that in law school when a prof said Rehnquist had a talent for sneaking his dictum in liberal opinions.

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