Teresa Manning, who heads the Title IX Project for the National Association of Scholars, was troubled, and gave me a call to ask if she missed something. What caught her attention was the third prong of the new Title IX regs definition of sexual harassment. To understand its significance, the path by which anything that happens on campus flows into a Title IX violation has to go through sexual harassment.
Despite all the claims otherwise, it’s the only “ill” giving rise to a Title IX violation, and all the other ills, from dirty jokes to rape, have to be funneled through it. Don’t blame me. That’s what the Supreme Court says.
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. 20 U.S.C. § 1681(a). It is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, but a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.
Yet, the new definition expressly excludes from the strictures of Davis four categories of offenses: Sexual assault, dating violence, domestic violence and stalking. This raises two independent questions, whether they constitute sexual harassment, and thus discrimination, no matter how severe or petty the conduct may be, and what happened to the core requirement that it denies a “victim” educational opportunity?
While the first question essentially reflects the DoE’s rejection of the Supreme Court’s test in Davis, which isn’t the first time this happened, the second goes to the agency’s jurisdiction, authority if you will, to stick its nose into peer to peer sex at all. The DoE is not the general campus sex police, but responsible for the execution of Title IX. Title IX mandates equal educational opportunity regardless of sex. If the “thing” at issue doesn’t deny anyone educational opportunity, then the “thing” at issue has nothing to do with the DoE.
So how do the new regs explain the DoE’s seizure of control over conduct that might, otherwise, be crimes much like any other crime? From page 542 of the full regs.
Because Federal courts applying the Davis standard have reached different conclusions about whether a single rape has constituted “severe and pervasive” sexual harassment sufficient to be covered under Title IX, we are including single instances of sexual assault as actionable under the § 106.30 definition. We believe that sexual assault inherently creates the kind of serious, sex-based impediment to equal access to education that Title IX is designed to prohibit, and decline to require “denial of equal access” as a separate element of sexual assault.
While the explanation goes on to parse particular concerns as to individual acts, there is no further discussion of the “equal access” denial prong. It’s all swept up in the “inherently creates the kind of serious, sex-based impediment to equal access” language. It’s inherent. That’s it.
But is it? Is every woman so fragile a flower that a good morning wake-up kiss without the requisite expression of consent after three years of dating, nightly sexual engagement, and a night of sober love-making, will deprive her of educational opportunity? Will she be unable to function after that kiss, to attend classes, to walk on campus without collapsing in a puddle of PTSD tears at the mere thought of her “perpetrator” breathing the same campus air as her?
This isn’t to say that a sexual assault would not cause such an impact as to implicate Title IX, but that it can’t simply be presumed in all instances under the word “inherent.” And if it was inherent, as Teresa Manning queried, what of the many other common crimes that are similarly serious and potentially traumatizing? If a man steals a woman’s laptop because he’s bigger and stronger and he can, is she not similarly traumatized? And does the theft of her laptop not deny her access to educational opportunity? Or a mugging in the quad? There are a great many generic crimes that have as much, if not more, potential to deny a woman equal access to education, yet they’re not on the list. Heck, they’re not even mentioned.
Over the past decade, word by word, notion by notion, offense by offense, became untethered from both definition and jurisdiction as activists sought to increase the powers on campus to control the actions of their male peers while ignoring whether it had anything to do with the purposes of Title IX. And it appears they have accomplished this goal in spades by persuading the DoE to divorce these four generic categories of sex offenses from the sole purpose claimed to connect criminal conduct to the DoE’s jurisdiction.
Calling their impact on “equal access” inherent no more does the trick than it would by assuming general jurisdiction over all crimes. If the element of deprivation of educational opportunity can simply be presumed, then there is no limit to the power of the DoE to become yet another general prosecutorial agency, except with the delegation of its prosecutorial authority to any campus administrator with a chip on her shoulder. There is no authority in Title IX for this. Calling it “inherent” doesn’t make it so.