It was a senior, Jacqueline L. Kellogg, who came up with the scheme, and what a scheme it was. The students had already been protesting over the confirmation hearing and demanded that Harvard toss its formerly beloved adjunct. But what could they do to more affirmatively go after the nemesis, their devil of the moment? Kellogg came up with the solution:
Jacqueline L. Kellogg ’19 — who said she has filed a complaint against Kavanaugh with the University’s Office for Dispute Resolution — came up with the idea several days ago. She began urging fellow students to follow suit over the weekend, at one point sending an email to a group of students at the College and the Law School that offered specific instructions on how to bring a formal complaint to ODR.
A formal complaint? Was there a formal complaint for being hated because he was . . . hated?
[A]t least 48 students* had signed an online petition certifying they had filed a Title IX complaint against the nominee.
Title IX reared its available head. The students’ thought processes are no mystery: he was accused of a sexual assault and they believe. Thus, he was, as far as they were concerned, a sexual abuser, even if it happened 36 years ago, even if there wasn’t the slightest whiff of impropriety in his dealings at Harvard. If he did it, and their religion demanded their fidelity, he was it: He was rapey. They could not bear to have a rapey person teaching at Harvard.They had to stop this rapey person from teaching as it would be too horrifying to endure.
And there was a process available to them to do something about it, to make a formal complaint. Title IX.
Kellogg’s email to students included an explanation of ODR’s operating procedures and encouraged recipients to reference Harvard’s policies barring gender-based harassment. The University defines gender-based harassment as “verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile conduct based on sex, sex-stereotyping, sexual orientation or gender identity.”
Kellogg and Julia B. Wiener ’19 — who also signed the petition and filed a complaint against Kavanaugh — both argued the nominee’s presence on campus would create a “hostile environment” as defined in Harvard guidelines related to sexual harassment.
It wasn’t that they feared he would do something untoward to anyone. It was his presence, that he might physically exist within their safe sphere. This, they complained, created a hostile environment.
Harvard lawprof Jeannie Suk Gersen pointed out the obvious, that such a frivolous complaint undermined the use of Title IX for real complaints.
“Such an abuse of process would undermine the legitimacy and credibility of complaints that the Title IX process is intended to deal with, as well as of the Title IX office to focus on its duties,” Suk Gersen wrote in an email. “It might be effective in drawing further attention to some students’ objection to Kavanaugh’s teaching appointment, but I don’t expect him to be found to have violated Harvard University’s Sexual & Gender-Based Harassment Policy based on the currently known public allegations against him.”
Notably, this criticism, while certainly valid, focused not on what they affirmatively did wrong, but its consequence on other complaints. This is a common explanation, and misdirection, of the problem, wrapping it up in the notions that will appeal to those who abused the process.
Like the false rape accuser whose wrong is undermining legitimate rape accusers, it ignores the harm done to the falsely accused. Indeed, Gerson doesn’t “expect” him to be found in violation, as if there remains some chance that this lunacy will prevail.
Ignored is that Title IX, a relatively straightforward law prohibiting sex discrimination that denies a person educational opportunity, has morphed into generalized prohibition against anything that makes female students uncomfortable or displeased. Here, the kids argued that the presence of someone accused created a “hostile environment,” hardly a rhetorical stretch given that anything that could be framed in fear and loathing would easily be felt as hostile.
Gerson was obviously correct to call this an “abuse of process,” though absurd and frivolous are other words that come to mind. But they fail to capture the problem. These students seized the opportunity to use Title IX to harm someone, to ruin someone, who had done nothing to them. It was dishonest and dishonorable of the students, whose abuse should not be overlooked.
Yet, blame the contortions of Title IX for providing this vicious miscreants with the bludgeon to abuse. It’s grown into a monster without substance or meaning, a “go-to” law to beat anyone into submission whom you just plain hate, but can pretend with a few adjectives makes you scared and fearful for your sexual well-being.
Not to harp on law, but as the Supreme Court in Davis v. Monroe County stated, sexual harassment under Title IX is only actionable against the university if it’s ” 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.” If one man’s mere presence on campus, because of an unproven belief of impropriety 36 years, can be taken seriously under Title IX, it’s because the law has grown so separated and meaningless from its purpose as to be farce.
The problem isn’t that ridiculous claims undermine legitimate claims. The problem is the law is devoid of meaning and substance and, in the hands of disingenuous and dangerous people, is ripe for severe abuse. Hate Kavanaugh? Great, hate whomever you want, but that’s no excuse for a law to be so pliable that it can be used to accomplish any damage desired by twisted and hateful students.
*Whether it was 48, or some students just claimed to have filed complaints to signal their support or because they want to be invited to the party, isn’t a critical detail. Let it go.