According to Inside Higher Education, there are more than 96,000 comments on the proposed Title IX rules, which would make it 96,000 more than were made when Russlyn Ali and Catherine Lhamon created a system of campus sex policing out of whole cloth. Most of the comments are noise, of little value or use. Contrary to the assumptions and efforts of advocacy organizations, it wasn’t a public referendum and the side with the most “Fuck You” comments doesn’t win.
In the final days, the “big guns” came out, introducing their prolix thoughts on the systemic changes. There is a forest. There are a great many trees. Few of the comments take a look at the big picture, although it’s in there, even if inadvertantly. For example, from the American Council on Education:
Most importantly, we ask that the final rule reflect this fundamental premise: Colleges and universities are educational institutions, not arms of or alternatives to the criminal justice system. They should not be expected to mimic civil court systems with trial-like forums that enable one person to seek a quasi-judicial judgment against another individual. Attempts to graft formal legal procedures onto internal college and university disciplinary systems conflict with a longstanding body of case law that distinguishes college disciplinary processes
from judicial systems.
The underlying conduct at issue is quasi-criminal in nature, whether rape, sexual assault or harassment, although unlike real crimes, they are devoid of elements, clear notice, and generally “defined” based upon vague and fuzzy subjective language. Yet, the consequences are enormous, far greater than most crimes prosecuted in “real” courts. Expulsion. Permanent “records” of sexual offense that will preclude alternative education and future employment. Forfeiture of hundreds of thousands of dollars.
These are life-destroying consequences, and in contrast with petty theft prosecuted in criminal court with full due process protections administered by competent people in an appropriate forum, the claim that college consequences aren’t like real crimes because they don’t involve imprisonment is revealed as a lie. These consequences are far more harsh than most crimes prosecuted in real courts with full protections.
But as the ACE comment makes patent, they can’t do it. Colleges are not courts. Colleges can never be courts.
The presumption underlying the NPRM that every institution can and should provide a court-like forum for one individual to press a case against another one also is problematic and antithetical to the educational environment.
This is correct, but backwards. For reasons that have been fully explored many times here before, the expectation that college students and staff are capable of conducting a neutral investigation, capable of understanding the concepts and language of law, capable of performing the tasks required to manage a system that can destroy a person’s life, is misguided. As ACE admits, it lacks the capacity to provide a system sufficiently neutral, fair and effective to impose penalties as, if not more, severe than the criminal justice system.
Rather, the presumption is not that every institution can and should provide a court-like forum, but that every institution should be engaged in the policing of peer-to-peer sexual relations on campus in the first place. Of course they can’t manage a fair, neutral and competent system. To believe otherwise is to be deliberately naive or blind. But if they can’t, as they readily admit, then they have no business destroying lives.
This raises another “forest” question, whether effectuating Title IX requires that this system, born of the fertile political agenda of bureaucrats Ali and Lhamon without Congress or courts imposing the burden on colleges, exist at all. The comments by the Harvard Three, Jeanie Suk Gerson, Nancy Gertner and Janet Halley, addressing the over- and under-inclusiveness of the definitions of sexual harassment are revealing.
The Rule should require conduct that is severe or pervasive, not conduct that is severe and
pervasive. To be sure, the language in the Proposed Rule is taken directly from the Supreme
Court’s Title IX case Davis v. Monroe County Board of Education. But there, the Court was
crafting a distinctly narrowing definition of sexual harassment for a very specific purpose: to
limit private parties’ access to civil lawsuits against school boards for money damages.
As the Davis Court acknowledged by citing Meritor Savings Bank v. Vinson, a Title VII case, the
standard legal definition of sexual harassment is broader than the one used in Davis. The
Meritor definition requires unwelcome sexual conduct that is sufficiently severe or pervasive so as to impair a person’s access to the protected activity.
It will likely come as a shock to many that Title IX, prohibiting sex discrimination in education, has no application to individual student conduct, but only to the institution’s conduct relative to its students. Title IX does not prohibit rape. Rape is a crime, prohibited by criminal laws. Title IX prohibits a college from ignoring conduct that deprives a student of educational opportunity on the basis of sex discrimination.
As the Harvard Three note, the Supreme Court in Davis held that a college can violate Title IX by failing to address sexual harassment of its students, which it defined as conduct that was so “severe, pervasive and objectively offensive” that it impaired educational opportunity. They argue for the Title VII Meritor definition, “severe or pervasive,” but ignore that while Title VII and Title IX are similar, they are not co-extensive. Employers aren’t required to hold court between employees, and there is no constitutionally-protected property interest in employment as there is with an education.
What’s presumed, and overlooked, in the comments of the Harvard Three, as well as the ACE, is that colleges must have a system to address every sexual complaint between students, that colleges are sex nannies of their charges, and that Title IX authorizes, if not mandates, them to oversee peer-to-peer sexual relationships. It does not, but Ali and Lhamon have been remarkably successful in their effort to create such a belief about Title IX and the duty of colleges to litigate and judge the propriety of peer-to-peer relations. This is taken as a given, that “of course” colleges must deal with this problem. To their credit, this aspect of Ali’s and Lhamon’s Frankstein Monster lives, and the institutions take their role as sex police for granted.
As ACE concedes, while colleges may embrace a duty, a jurisdiction, over the most banal details of students’ sex lives, they lack the capability of dealing with it. Of course they do, but the answer to “we can’t manage a fair, neutral and competent system” is that they don’t get to destroy lives unfairly, not that they get a free pass on an unfair system because a viable system is beyond their capacity.