While Title IX advocates decry the soon-to-be-released regulations that are putatively intended to permit colleges to afford the accused minimal due process at campus sex tribunals, they’ve quietly scored a “win” with the Department of Education by convincing it to delve into an area of law for which there’s no authorizing law, no competence and no connection between the problem and the sole purpose of Title IX, affording educational opportunity without discrimination on the basis of sex.
It’s not that it isn’t a problem, but that it isn’t a Title IX problem.
Education Secretary Betsy DeVos’s pending rules on sexual misconduct at the nation’s schools and colleges will include provisions to shore up protections for victims of stalking and dating violence, a response to lethal attacks that have underscored the weakness of current policies.
The rules will for the first time cement domestic violence, dating violence and stalking as forms of gender discrimination that schools must address under Title IX, the federal civil rights law that prohibits sex discrimination in education programs that receive government funding.
How are “domestic violence, dating violence and stalking*” defined? The article doesn’t bother to say. What are the “rules” that “cement” these as “forms of gender discrimination”? Nope, you won’t find a word about that either. Of course, each of these things is already a crime, for which we have laws and a system in place to address them. This seems to have been completely ignored as well, as if these problems are somehow unique to college women and happen nowhere else in society.
But more to the point, advocates seek a special route to address crimes committed against women when they are college students that avoids the systems society has crafted to address them and demands a special system just for them. Except not handled by those competent to do so, like police, but instead by the campus Title IX bureaucracy.
The rationalization will strike a familiar tone, much as the campus sex tribunals have crafted their own litany of excuses to create “special pleading” for the need for a subconstitutional system apart from the system that applies to everyone else.
“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education,” said Sage Carson, the manager of the victims’ rights advocacy group Know Your IX.
Whether there is anything to this complaint would require one to define “dating violence.” If it involves physical harm to anyone, then it is already a crime, just like any other violence. That a crime occurs to someone who coincidentally happens to be a college student doesn’t make it any less of a crime or implicate Title IX any more than anything else that could coincidentally happen to a college student.
But the concern is that it isn’t about criminal violence, such that it’s a matter for police, just as the notion of “rape” on campus bears little connection to rape as proscribed by law. Is it any conduct that causes a female student to be afraid? Will it include a loud argument? Will it be a woman’s feelings of intimidation because he was being mean and he’s bigger, stronger and thus more “intimidating”? Not that he did anything except exist, but she was afraid, and isn’t she allowed not to be afraid?
To prove the righteousness of the shift, New York Times reporter Erica Green plays the tragic anecdote game, cherry-picking the nightmare stories for sympathy.
Lauren McCluskey’s death is one of several cases officials considered when they settled on the new changes. Her parents, in a lawsuit against the University of Utah, said the school violated the civil rights law by not investigating more than 20 reports of their daughter’s abuse, which were brought to the attention of at least six staff members.
Instead of taking action, the lawsuit said, school officials assumed she would want “privacy,” and “only considered threatening Lauren with guest policy violations” for allowing her boyfriend, who was not a student, to live in her dorm room. He was later found to be a felon and sex offender on parole who had lied about his identity.
There’s no doubt that Lauren McCluskey’s death was a tragedy, but what possibly compelled her to bring her non-college crazy lying violent ex-boyfriend, whom she invited to live with her in her dorm room, to “at least six [college] staff members” instead of the police?
Her parents were on a cellphone call with her when they heard her last four words — “No, no, no, no” — as she was dragged into the back of a car and shot seven times. They contend in the lawsuit that their daughter’s complaints were not taken seriously based on the “assumption that Lauren, like most women, was unreasonable, hysterical, hypersensitive, paranoid, overreacting to the situation and not being truthful.”
These are the allegations set forth in a Title IX complaint in order to shoehorn what happened into a sex discrimination claim, that she was subjected to discrimination based on female sex stereotyping. Beyond that, she was certainly a crime victim, but a crime victim no different than any other.
And what would the college have done about Lauren McCluskey’s killer? He wasn’t a college student, so he couldn’t be expelled. Every other remedy would have required the involvement of police to enforce.** But without going that route, what did she think was going to happen, that the Title IX officer would stand at the college gate to physically bar her ex-boyfriend from stepping on the quad?
While the anticipated Title IX regs will likely do little more than allow colleges to have minimally fair processes, should they choose to do so, the expansion of Title IX responsibility into general criminal conduct raises harrowing possibilities of new failures. Would Lauren McCluskey be alive today had she gone to the police rather than campus staff? We’ll never know because she didn’t.
*Stalking raises a plethora of problems, since students in the same dorm or the same classes will run across each other in the perfectly normal and ordinary course of the day without any ill purpose or intent. If a woman feels as if she’s being stalked, should male students be forced out of their dorms, their classes, to accommodate her fears? How does he obtain an education should a complaint of stalking be raised?
**Campus police were among the “staff,” which raises the question of why they didn’t use their authority (most campus police are sworn law enforcement officers) to act. But that issue is a policing failure, not a Title IX failure.