Over the past couple of days, there have been a great many deep-dive articles, editorials and op-eds written over the silly little Title IX sexual misconduct problems I’ve been writing about for years. Poor KC Johnson probably has terminal writer’s cramp by now. All are valued academics and pundits, and all are standing atop far larger soapboxes than SJ.
I should be thrilled. After all, misery loves company, But I’m neither miserable nor mind being a lone voice, as I was for years before others hopped aboard.
Jeannie Suk Gersen’s New Yorker article sums up one of the problems that have been taken for granted by so many of those who are speaking out now in support of ending the campus star chambers.
Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.
Never would I have imagined a Harvard law professor to justify an untenable system based on a “common understanding.” This is a fair representation of how things are today, that pretty much everyone has taken for granted that Title IX compels the Department of Education to be in the business of enforcing sex regulation of colleges, to be the campus sex police.
This is false. There is no law, no court decision, that either authorizes or mandates the Department of Education, or colleges for that matter, to sneak a peak in every bedroom to make sure kids are having sex according to government dictates.
The background is clear, that this was the goal of a radical feminist at Yale, Catherine McKinnon, and to her credit, she pulled it off. She and her cohort managed to manipulate Title IX into campus sex policing for the benefit of women too fragile to be responsible for their own actions. I wrote about this in 2015, long before anyone had a clue that Trump would be president or Betsy DeVos would be Secretary of the Department of Education. By this point, the Office of Civil Rights had already gone rogue under Russlynn Ali and then Catherine Lhamon.
This is why Jeannie Suk Gersen writes today that the DoE rules dorm-room sex under a “common understanding.” The closest the law comes to authorizing a federal agency to have any business in college students’ pants is Davis v. Monroe County BoE, where they held:
It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities. (Emphasis added.)
Am I the only one able to research the law, to be aware of the fact that there is no law that authorizes either the federal government or colleges to micromanage every physical sexual contact, every spoken word or overture that might offend a sensitive co-ed, under Title IX? After all, are these not academics, scholars even, who should certainly be capable of reading the cases, tracing back the source of our current regulatory scheme to a radical shift in Title IX’s control?
There is a conflict, a schism even, between the position taken by the wealth of rational voices applauding the end of the campus star chambers in the expectation that due process, the now-hated bane of “survivors,” and the view of one old lawyer. It relies on a tacit policy belief that the problem of rape and sexual harassment on campus is real and must be stopped.
To a person, these voices support due process (to some extent, at least) for the accused, which is great. To a person, not one questions whether colleges should be campus sex overseers. To a person, not one challenges the authority of the Department of Education to keep its finger on the zipper. It’s not that Congress passed a law authorizing the DoE to establish a sex-police force. It’s not that Title IX says anything of the sort. It’s not that the Supreme Court has given its approval except when the claims are “so severe, pervasive, and objectively offensive” that it impairs the ability to obtain an education. None of these things justify our current situation.
As Jeannie Suk Gersen correctly characterizes it, it’s just some “common understanding.” We’ve all taken it for granted that there’s a problem and something must be done. Except there is no law to do so. DeVos has now announced that the DoE will rescind the 2011 (Ali) and 2014 (Lhamon) Dear Colleague letters, and conduct notice and comment to formulate new regulations, but whatever comes of it, it will still keep the DoE’s, and their supplicant colleges’, keen eyes in students’ bedrooms to make sure they’re having government-approved sex.
Is there a rape epidemic demanding something be done? “Rape” is one of the most awful words in the language, but when the meaning can vary between being beaten and forcibly violated in an alley and a determination made six months after a drunken night’s regret, it suddenly doesn’t seem quite the same.
Neither the DoE nor colleges are equipped in any way to manage the sex lives of students, or their futures. The “real” legal system is a travesty on its best day, and it affords the full panoply of due process rights. There is no chance some hybrid system run by well-intended and feminist-sensitive academics will prove up to the job, regardless of what standard of proof is used. There will be lives ruined for ideology.
All the good, smart people explaining why this shift in DoE guidance is the right thing to do because of this “common understanding” that it’s right for the feds to police campus sex. Near as I can tell, there is only one person who still isn’t on board with the sex police. Call it an uncommon understanding, but having spent years explaining why this was a nightmare long before these more important voices took notice, flying solo is nothing new.
There is no law that authorizes or mandates that the Department of Education get to set the rules for sexual conduct on campus. Get the feds out of students’ dorm rooms. The DoE is not the sex police, and they have no authority here except as provided by the Supreme Court.
— Scott Greenfield (@ScottGreenfield) September 9, 2017