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.
Is “comments closed” one of those statements that has subliminal self-fulfilling powers?
It’s a very liminal self-fulfilling power.
I hope that you sent this analysis in as a comment to the rulemaking.
While battling the California bill SB169, authored by then Senator Hannah Beth Jackson, which would codify the 2011 Dear Colleague Letter, giving higher education 17 pages of sex policing ‘guidelines’ to follow or else lose federal funding, I was able to testify against this effort at one point, and during that session, Jackson said about the preponderance of evidence standard, “….its the best standard to use in these cases because there’s no loss of life or limb….”. I can tell you in the case of my son, wrongfully accused of sexual misconduct, losing his 4-year basketball scholarship at his beloved university, over $200k spent by us, his parents, to keep him out of jail and battle the overly biased Title IX administrator, the deep deep depression he entered into with all that was lost at the age of 19, and 3 years later, pops up often still….. yeah, i guess. He’s still alive (thank god), and hasn’t lost a limb…… but his life has forever changed, and so far, definately not for the better…..just because an after party consensual hook-up with another college student-athlete girl-friend, pissed off her brother and HE called ‘rape’ against my son. BAM, that was it…. my son’s life ruined. The ANSWER is due process for all sides, not for one side – which is exactly how it is on college campus’s today. THIS MUST CHANGE!!! Too late for my son, but we can help the next accused student have a chance in getting treated fairly.
There is no loss of life or limb in most criminal cases either, but we don’t use a preponderance standard in any of them. Jackson’s statement reflects a politicized ignorance, but that is what one would expect on the part of a proponent of the Lhamon “guidelines” (in which, the defective standard of proof is but one among a legion of due process issues). Unfortunately, even the rules now under consideration represent a political compromise of rights that should not be compromised. As a result, universities will continue to have their asses handed to them by accused students who can afford counsel, and accused students who cannot afford counsel will continue to suffer life-altering unfairness.
I pondered whether to post AP’s comment, as it was scattered and grossly simplistic in its grasp of the problem beyond its impact on her and her son. I decided to post it for the sake of her catharsis. I did not do so in order to have you reply with something similarly simplistic. Resist the impulse.
i’ve never really understood exactly what the APA and ‘notice and comment’ do require. As you point out, it’s obviously not a referendum, and quantity is not supposed to trump quality. I know there’s some sort of obligation to read every, but pretty sure there will be no quiz. What if there was an overwhelming majority of well-reasoned comments pointing some unintended consequences of a particular proposed reg and the final rulemaking just ignored the comments? Would an affected party with appropriate standing have grounds to sue?
And what about when the APA is just ignored as it was with the 2011 “guidance”? I presume a university could have in theory sued (or defended itself against any action the Lhamon OCR might have taken by arguing she had exceeded her authority because the “guidance” lacked force of law), but no uni wanted to for political reasons, and no one else (again, presumably) would have standing to challege the legality of the “guidance”? In short, I don’t understand exactly what impact – if any – that notice and comment has – dig through the comments and you’re going to find arguments for and against nearly every element in the draft regs along with at least a few dozen suggestions about how things “should” be done instead. It all seems to me like the underpants gnomes epidode of South Park: Stage 1: Solicit Comments. Stage 3: Final Rulemaking! Stage 2: ????
Thank you for sharing. All the lawyers and judges who were wondering, “what doesn’t Gregory Smith really understand,” will now be able to sleep tonight.
thanks(?) for not answering the question I asked – or the one you yourself posed in the post’s title — in favour of instead answering a question I didn’t ask and which you couldn’t possibly know the answer to.
You thought this was for you to ask questions? Silly rabbit.
“…the answer to ‘we can’t manage a fair, neutral and competent system’ is that they don’t get to destroy lives unfairly.”
Any chance we can get an official SJ t-shirt with this quote on it? Because I’d like to buy 5.
I really need to do SJ swag some day. Anybody want to partner up with me and handle the SJ swag line?
I just phoned my daughter and said “Sit down, I have something to tell you. Scott Greenfield requires your artistic services, pro bono.” She’s in. She’s a big fan of your work.
Cool. You’re now in charge of it. You’re gonna be RICH!!!
Sure–Gregory, give SHG a hand. The first message is “Ima Dope.”
Losingtrader replaced as curator of SHGisms? Sad.
For some reason, easily ascertained, none of these colleges are willing to fulfill their roles in loco parentis and assume the role of mandatory reporter, which would presumably resolve the problem of ensuring that all violent rapists and sexual abusers are punished severely, which is what the campus left claims that it wants.
I suppose that having actual FBI-verified statistics about the real number of sexual assaults on campus wouldn’t look nice in those glossy brochures that the universities send to impressionable high school seniors. For some reason, the universities want plausible deniability about the real numbers. This resolves one question that I have been pondering for a number of years. What ever happened to all of those tobacco executives once the market for cigarettes began to decline? I think that we know to where they transferred.
I have come to the conclusion that the university administrations across America have reached the conclusion that throwing out a few sacrifices to Moloch is a price well worth paying to keep the campus left fat and peaceful. After all, if they were not distracted by chewing on these few, unlucky young men, the woke would undoubtedly find some other mischief in which to involve themselves. Therefore, I propose a compromise: that a plaque be placed outside of each of these star chambers that states, “Valley of Hinnom Meeting Room”, so that the true purpose will be clear to all who enter.
Harvard law professors can’t figure out that college students aren’t employees and are not agents of the college.
In fairness, all three have been remarkably good about supporting due process and challenging the impropriety of the old procedures.
The comment was written far better than I expected. The professors’ comments on procedural protections are encouraging. But that’s only as good as the substantive reach of prohibited conduct. I remain deeply skeptical of anyone attempting to apply discrimination law principles to private citizens speech and conduct.