The opening sentence of the complaint in the United States District Court for the District of Massachusetts is cringeworthy.
Undeniably, private universities like Harvard have the authority (and under Title IX, the obligation) to protect their students from sexual assaults committed by other students.
Not only is it quite “deniable,” but this sentence is deeply misguided. First, there is the distinction between “protect” and “punish,” as if colleges (or is it just private colleges, or just Harvard?) can anticipate complaints of sexual assaults and prevent them from happening. There is no authority for this. There is absolutely no Title IX duty to do this. Yet, the complaint begins with the word “undeniably.” An ignominious start.
But the story that follows is harrowing.
As set out below, each of these terms aptly describes Harvard’s decision to railroad Mr. Doe into a campus proceeding that could result in him being suspended or even expelled—even though the sexual assault alleged against him did not take place at or near any Harvard property (indeed, in took place hundreds of miles away from Harvard), did not take place during the academic year (indeed, it took place more than sixteen months ago and not in connection with any Harvard program), does not involve a complainant (or even any witness) with any connection to Harvard, and in fact apparently does not involve any other connection with Harvard whatsoever.
There is one, and only one, connection between these Title IX accusations of rape, allegedly based on the post-hoc regret theory, and Harvard. The male plaintiff is a Harvard student. Every other aspect of this accusation, from time to place, has absolutely nothing to do with Harvard. But the most bizarre, and critical, aspect of the claim is that the putative victim isn’t a Harvard student.
In other words, Harvard’s proposed campus proceeding is not about vindicating or protecting Ms. Roe, or any other member of the Harvard community, because no one is claiming that Mr. Doe presents a danger to Ms. Roe while he is at Harvard (or elsewhere), nor does he present any danger to any other Harvard student. Harvard’s Title IX investigator herself has acknowledged as much in an e-mail to Mr. Doe stating: “[Your] alleged conduct, if true, . . . would not have the effect of creating a hostile environment for a member of the University
community . . . .” (Emphasis added).
This is where the concept behind Title IX becomes wholly untethered from law and reason. Title IX provides:
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.
In other words, this has nothing to do with Doe’s offense, per se, but the ramifications for the “victim” of his offense, the denial of the benefits of any education program. If Roe, the female accuser, isn’t a Harvard student, then Harvard can’t possibly deny her anything. She has nothing to do with Harvard. Harvard has nothing to do with her. And Title IX has nothing to do with Harvard’s attempt to assert jurisdiction over Doe’s conduct, regardless of whether it was wrongful, which occurred hundreds of miles away from campus, at a time when college wasn’t in session and to, allegedly, someone having no relationship to Harvard.
A disconnect has been hammered into the minds of the unduly passionate that Title IX is some sort of free-floating anti-sexual assault law for college students, where any student in college is somehow fair game for prosecution by his college for misconduct to anyone, anywhere, whenever. Even the highly attenuated claim of creating a “hostile environment” based on the feelings of putative victims doesn’t apply here, as the victim isn’t in the Harvard environment, whether hostile or filled with puppies and Play-Doh.
Unlike courts, which have actual jurisdictional limits, Harvard’s arts and sciences faculty have decided that they are the sex police of Harvard students anywhere in the universe.
The Faculty of Arts and Sciences, including the College and the Graduate School of Arts and Sciences, shares an additional commitment to training our students to be citizens and citizen leaders within a larger community beyond the borders of our campus. For this reason, it is the expectation of the Faculty of Arts and Sciences that all students, whether or not they are on campus or are currently enrolled in a degree program, will behave in a mature and responsible manner. Consistent with this principle, sexual and gender-based misconduct are not tolerated by the FAS even when, because they do not have the effect of creating a hostile environment for a member of the University community, they fall outside the jurisdiction of the University Policy. Because sexual and gender-based misconduct are in direct opposition to our community values, cases involving such conduct may be referred by the relevant Administrative Board (“Ad Board”) to the Harvard University Office for Sexual and Gender-Based Dispute Resolution (“ODR”) for investigation in accordance with the University Procedures and the jurisdictional guidelines described in this Policy.
That the woke faculty have decided that they will not tolerate the “perpetrator” of “sexual and gender-based misconduct” in their midst, no matter where, when or to whom it occurred, raises one question. But that the FAS has decided that it not only refuses to tolerate students who behave in ways in which the faculty doesn’t approve does not mean that Harvard gets to adjudicate claims beyond its jurisdiction. If Doe was convicted of rape in Maui, this policy might be sufficient to ban him from campus. But that isn’t at all the same as Harvard deciding to adjudicate, on its own and in its special college way, an allegation of rape in Maui.
Some wag might argue that if Maui declines to prosecute, what’s Harvard to do? The answer is undeniably clear: nothing. If no student at Harvard is denied educational opportunity, then it has nothing to do with Harvard. That’s what Title IX provides.
H/T KC Johnson, who does the heavy lifting of keeping track of the myriad craziness of Title IX actions.