“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
–Lewis Carroll (Charles Lutwidge. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872.
Definitions of words have suffered gravely over the past few years. Vague words, like harassment, have come to mean anything the person claiming victimhood decides they mean. Even words with reasonably well-defined legal meaning, such as rape, have become untethered from their definition. When words mean anything, they mean nothing.
This doesn’t trouble some people, as it allows them to manufacture whatever meanings they want when hurling accusations and epithets, but it makes two things very difficult. The first is communication, as the lack of a common definition means the person sending the message and the person receiving it may hear or see the same word, but not be using the same definition.
When one’s understanding is vague and fuzzy, such as someone accusing another of “sexual misconduct” which provides no actual information of what happened but conveys a strongly negative sense, at least you realize the word is so vague and meaningless as to offer no substantive idea of what happened. But rape? That’s a fairly concrete if conclusory word, conjuring up the image of a man forcing himself on a women against her will. But that’s not even remotely what it means anymore.
The second problem is in the law, as conduct cannot be wrongful if it’s undefined, if its elements are unknown or depend not on the conduct at all, but on the impact it has on someone else. For an anodyne example, if someone asks if a dish at a restaurant needs salt, the answer is based on the tastes of the person eating it. People with different tastes will have different opinions on whether a dish is properly seasoned. It’s not dependent on the dish, but on the taste of the person eating it.
Under the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education, the Court addressed the vagary of the word “harassment” under Title IX.
Having previously held that such harassment is “discrimination” in the school context under Title IX, this Court is constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of “discrimination” actionable under the statute. The statute’s other prohibitions help to give content to “discrimination” in this context. The statute not only protects students from discrimination but also shields them from being “excluded from participation in” or “denied the benefits of” a recipient’s “education program or activity” on the basis of gender.
Despite this, the Department of Education, Office of Civil Rights under Catherine Lhamon manufactured its own definition, utterly devoid of legal basis, and unilaterally imposed it on colleges.
Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex.
To the extent one could call it a definition, it was breathtakingly meaningless. “Any unwanted conduct of a sexual nature” ran the gamut from “stare rape” (“he leered at me”) to dirty jokes to forcible rape. And if a woman complained of “unwanted conduct,” whether at the time or years later, it was incumbent on the school to investigate and prosecute the accusation or suffer the wrath of Lhamon by a publicly announced OCR investigation of the school for neglecting sexual misconduct. The college got terrible press as a place where rapists were coddled plus the threat of loss of federal funding.
The new proposed regulations, being subject to notice and comment unlike the “guidance” issued by Lhamon in defiance of the Administrative Procedure Act, have taken two bold steps to return Title IX enforcement to some small amount of cognizable meaning.
First, they restore the definition of harassment to the language of Davis, “severe, pervasive and objectively offensive.” It remains vague and susceptible to broad interpretation, but at least serves to distinguish conduct that’s trivial or one-off peer-to-peer actions, from campus prosecution.
Second, in conjunction with the restoration of some limit to the word harassment, the proposed regs restore the second prong of the Davis definition, that the “severe, pervasive and objectively offensive” conduct impair the student’s education. Remember, Title IX is about discrimination in education, not discrimination in general or sex policing in general.
Under the Lhamon regime, colleges assumed worldwide jurisdiction to police unwanted sexual conduct no matter where it occurred or who was the alleged victim. For example, if the “victim” wasn’t a student, or was a student but at some other college, but the alleged perpetrator was, colleges still prosecuted and punished the student. There was no cognizable discriminatory impact on the purported victim’s educational opportunity, and yet they prosecuted and punished.
The proposed regs restore rational and legal limits to colleges unbridled authority to prosecution, restricting their jurisdiction under Title IX so that colleges are “only responsible for responding to conduct that occurs within its ‘education program or activity.'”
Remember, the only justification for these campus sex tribunals was to fulfill the colleges’ duty to its students not to discriminate. It was not as generalized sex police of its accused male students, whenever, whatever, wherever and to whomever it happened. College sex tribunals were not free-floating inquisitors of college sex conduct, although Lhamon’s guidance made colleges supercops of unwanted sex without regard to the second prong of Davis, the discrimination as to educational opportunity.
The key here isn’t that the proposed regs have changed anything, but that they have restored the wild and baseless guidance forced upon colleges by OCR under Lhamon to the law, the definitions, the limitations, that existed all along, but were ignored. This is a return to established law. To the extent this feels as if it’s a change, the blame falls on the fact that the rules were untethered from law and definitions before, making the restoration of law and definitions seem as if it’s a new change rather than a return to what the law mandates.