Finally, the draft of new Title IX regulations for campus sexual harassment adjudications has become publicly available. They’re unfortunately long, at ~120 pages, which is often confused with comprehensive rather than overdone. The more lengthy the explanation, the more confusing and confused it often becomes. But given the controversial nature of trying to put the genie back in the lamp, equivocation comes as no surprise.
The premise of the changes seems fine.
Ironically, the substance of Title IX, 20 U.S.C. § 1681(a), itself is short and to the point.
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.
Five words have created an industry and expectation that this sentence entitles co-eds to a sword wielded by their college to cut down anything and anyone whose actions, or inactions, fail to vindicate their every emotional hurt. And they have good reason to do so, as that’s how the Department of Education, Office of Civil Rights, interpreted those five words.
This was done by the very deliberate unilateral fiat of OCR bureaucrats during the Obama Administration, who pursued a series of lies (which became truths in the minds of the afflicted) and cures for those lies based upon a series of “Dear Colleague” letters and explanatory notes whose sole purpose was to compel a foregone conclusion that female students would have a means by which to vindicate their every emotional sexualized harm at the hands of male students.
If this characterization seems severe, it is. It’s meant to be. Catherine Lhamon has won. On the most superficial level, the new regs may have relieved colleges from Lhamon’s mandate, upon unlawful threat of withholding federal funds, that they provide a mechanism to vindicate every hurt feeling suffered by a college woman by making Lhamon’s demands permissive rather than mandatory, but they keep the existence of a mechanism intact, they permit colleges to continue to deprive male students of due process, both directly and by allowing means of circumvention of basic protections. And, truth be told, even if they required the provision of due process protections in every instance, would still fail to provide a mechanism that wouldn’t grossly favor the accusers.
But the details of adjudication notwithstanding, they keep colleges in the business of sex policing individual students’ grievances. This was the pseudo-Amazonian utopia Lhamnon, and her spiritual guide, Catherine McKinnon, whose career has been devoted to recreating the relative power structure between men and women, desired.
The irony can be found in the word “Amazonian,” as Amazons were women who were strong, whereas there is no word for women who are so fundamentally weak that only by the use of mechanisms created to protect and defend their weakness can they seek to vindicate their feelings.
The entirety of this reinvention of Title IX sexual protections was geared to excusing weakness and failure, the very essence of extolling inequality. These regulations institutionalized the inability of female college students to have a beer, maybe a few beers, and still be responsible for their choices; to be bold enough to say “no” if they didn’t want to engage in any sort of sexual conduct; to hear words that might be unpleasant to their sensibilities and not collapse in the corner and weep over the trauma. These words are now deemed misogyny, being contrary to the teary excuses that are promoted in the new Orwellian rationalization of equality. On the contrary, they reduce women to insipid, incapable, fragile waifs, but with a litany of excuses so they don’t have to confront their weaknesses.
The Supreme Court held in Davis v. Monroe County Board of Ed. that Title IX protected students from sexual harassment that was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Colleges’ liability under Title IX was deliberately limited, circumspect, not to every hurt that could be rationalized through the murder of adjectives to make a student individually feel sad. Yet, these words have morphed into the requirement that colleges be guardians of every hookup gone astray, for any reason, because everything is so traumatic. We know it is because she says so, she cries, she feels so very, very sad and hurt. And so colleges must protect every student whose routine experience with another student causes the slightest twinge of unpleasantness.
And because of this, the new DeVos regulations attempt to provide an opportunity to break free of the requirements of the Lhamon demands, while maintaining the basic structure, the basic concept, that colleges must remain in the sex policing business under Title IX. They never had any business being there. They still don’t. We’re now tweaking around the edges of a fundamentally untenable system as if a bell here, a whistle there, will somehow make this work. It won’t.
Cross examination won’t make this work. Elevating the burden of proof from preponderance to clear and convincing evidence won’t make this work. It won’t work because colleges are incapable of handling the complexity of rape and sexual assault accusations. But most importantly, they should never have been involved in these matters in the first place.
In another time, feminists seeking equality would have told colleges to keep their noses out of women’s sex lives. Thanks, but no thanks, we are strong enough, smart enough, tough enough to deal with men as equals, and we don’t need a litany of excuses, or a special faux legal system designed to overcome our feminine weakness to save us from men. We can do it ourselves.
Instead, the DoE OCR has tried to vaguely curb the excesses of a system that should never have existed at all and will never work. By grossly overshooting any reasonable mechanism, the pullback now, despite the cries of Title IX advocates, entrenches a failed system of individualized sexual policing on campus with devastating impact on the accused, almost invariably men, for the vindication of fragile women. Lhamon may not have gotten everything she ever dreamed of, but she won by the fact that there are about 120 pages of rules establishing a system that shouldn’t exist at all.