The Title IX Pendulum That Wasn’t

It’s surprising when an editorial reaction to anything coming out of the DeVos Department of Education, or the Trump administration in general, isn’t shredded for no better reason than Orange Man Bad. After all, even a blind squirrel finds the occasional nut, and while the new Title IX regs raise more questions than answers, they are certainly a step in the right direction. And the LA Times agrees, their Trumpian roots notwithstanding.

When Education Secretary Betsy DeVos decided to revisit the rules governing sexual assault accusations at colleges, some victims’ advocates feared she would make it too difficult to hold assailants responsible. But the rules released this week make reasonable changes for the most part, curbing some of the excesses of the previous system.

The editorial is, like most, shallow, demonstrating a superficial grasp of both the problem and the cure. After all, the new regs involve legal concepts and their application in a real world setting, and this is well beyond the scope of editorial writers’ world. That they recognized the virtue of giving the accused any opportunity to defend himself against a college bureaucracy dedicated to sacrificing the male, innocent or guilty, and if guilty, of what, an offensive act or an entirely consensual act that morphed into “rape” a few years later, is to their credit.

When you get an editorial like this, there’s a natural inclination to applaud it. After all, it’s mostly right and supports the general notions of due process. Why question your friends, particularly when there are so many enemies out there spewing deliberate lies? And indeed, to have a major paper end up on the right side of an issue is no small matter these days. The New York Times has yet to take a position on the new Title IX regs. Maybe they were too busy with other things.

But there is one deeply concerning aspect of the LA Times editorial that can’t slip under the rug, as it reflects how myths get created and perpetuated, quietly in the background as the warm hand massages other parts of the issue.

This has been a fraught topic from the start, its history one of pendulum swings. A decade ago, colleges and universities routinely swept allegations of sexual assault under the rug, discouraging victims from reporting, taking little to no action against their attackers and misreporting the numbers. Seeking to change that culture of denial, the Obama administration took strong measures to ensure that higher education took this matter seriously.

That this situation arose because “a decade ago, colleges and universities routinely swept allegations of sexual assault under the rug,” is false, a wholesale reinvention of history that creates the belief that there was legitimacy in the invention of campus sex tribunals, a very real, very bad problem in need of repair. It’s untrue.

First, a small detail of some crucial significance needs to be understood: Title IX prohibits discrimination on the basis of sex by the college. Not by the college’s students, per se, but the college. It can’t have boys’ teams but not girls’ teams. It can’t require boys to take shop and girls to take home ec.

It wasn’t until years of dedicated activism by Catherine McKinnon and her cohort that colleges became liable under Title IX for their own actions in failing to address sexual harassment on campus that impaired students’ educational opportunity by reason of sex. Still, it wasn’t the conduct of the students that invoked Title IX protections, but the inaction of the colleges to protect female students from sexual harassing male students.

The very notion that colleges “routinely swept allegations of sexual assault under the rug” has no grounding in reality. The rule back then was “no means no,” and the notion of “affirmative consent” or post-hoc regret would have been an absurd Dworkian wet dream.

Even worse, there was no requirement that colleges insert themselves into the routine peer-to-peer sexual relationships between college students. If two students wanted to have sex, that was their business. If they did it drunk, that was their choice. If the woman regretted her choice the next day, then she learned from her mistake and didn’t do it again. Or at least didn’t blame the man for raping her and expect the college to expel him. Women weren’t infantilized, but expected to be responsible for their big girl decisions.

There was nothing for colleges to sweep under the rug as colleges weren’t the sex police between rapey males and helpless females. That’s not to say there weren’t occasional scandals, where colleges kept their star athletes, for example, out of the news when they were accused of rape, but that reflected very different issues that were real at the time. The rapes would be handled by real police in real courts. And rapes were rapes, back when the word had meaning and the act was as awful as it’s still viewed by rational people.

To suggest that the Title IX regime on campus since the 2011 Dear Colleague Letter arose from an extant rape epidemic, rape culture, or routine sexual assault on campus that colleges swept under the rug, is to create a myth that normalizes a coup by radicals to recreate sexual politics.

To argue that colleges had anything to do with overseeing ordinary sexual relations between its male and female students is crazy. Indeed, students at that point wanted nothing more than to keep the bureaucracy out of their bedrooms. The days of all-girl dorms where boys had to keep one foot on the floor at all times was a vestige of the ’50s. The last thing college kids wanted was a nanny watching them.

There was no swinging pendulum a decade ago. There was no rape epidemic. There were no college admins ogling students doing the dirty. There was, however, a head of the Office of Civil Rights at the DoE who was finally in position to institute a plan to create this new sexual order. And now, as the LA Times rightly notes, there is an effort to bring some balance to an inquisition that was borne of a fevered view of helpless women in campus sexual relations and nothing more.

26 thoughts on “The Title IX Pendulum That Wasn’t

  1. delurking

    Having been on university campuses in various capacities throughout the 90s and early 00s, I don’t think you have this history quite right. There were rape culture accusations and take back the night marches and required orientation-week lectures about how drunk sex is rape and university bureaucracies aimed at keeping women safe. Perhaps they weren’t required to intervene, but universities certainly did not stay out of students’ sex lives.

    1. SHG Post author

      Your timing is off by a couple decades. You weren’t the only one there. There were a few Dworkian outliers, but they were extreme outliers and reflected nothing about campus culture. There are always a few crazies, but don’t reinvent history to make them mainstream now just because your memory sucks.

    2. David

      Thank you for explaining this, because when I was in college in the late 1990s/early 2000s, I was far too busy getting drunk and laid to pay attention to what the woke kids were doing.

      1. SHG Post author

        There were no woke kids then. They were just angry and lonely because no one would play with them.

        1. B. McLeod

          Hey, they could have signed up for free ABA memberships. Obviously they weren’t completely desperate for human companionship.

          1. SHG Post author

            They weren’t all in law school, you know. Plus, the ABA was still a lawyer org back then.

        2. Rendall

          “There were no woke kids [in late 1990s/early 2000s]. They were just angry and lonely because no one would play with them.”

          Ah, I see that you never visited the Pioneer Valley in the 90s, particularly not UMass Amherst nor the 5 college region. 60K+ woke kids, then, there. Randazza was there too and I bet he could confirm: that place was ground zero for all this mishegaas. It metastasized from there.

          1. SHG Post author

            My point was that there was no such thing as “woke” at the time, and while there was a small political correctness movement in the fourth-tier northeastern liberal arts colleges, it died back then and isn’t remotely the same as what’s happening now.

            1. Rendall

              I’m happy to agree to disagree on this point, since it’s peripheral and admittedly a lottle boring, but I’ll just leave off with this observation from my lived experience as a proto SJW at the time. While the phenomena wasn’t called “woke”, it already had every single other touchstone by which it is identified today: white supremacy is pervasive and global in scope; all white people regardless of background or circumstance planet-wide have benefited from the oppression of non-white people; men are rapists at core, and must be taught not to do it; gender is fluid, and taught solely through socialization; everyone is equal in capability, but socialization and oppression stunts these natural abilities; all legitimate artwork must consider representation and diversity; wealth comes from oppression; etc. These ideas were already quite refined by the mid 90s. Peggy McIntosh’s 1989 essay “White Privilege: Unpacking the Invisible Knapsack”, while seminal, wasn’t sui generis.

            2. SHG Post author

              You know that guy who’s said his orthogonal piece and, after a reply, needs to have the last word?

            3. Sandia

              I’m sorry to have to inform you that’s not true. I went to a large land grant school in the midwest from ’95 to ’99. The first thing you’re given is a rape whistle if you’re a woman and told that you can always have someone escort you home because “men will rape you”. Take back the night rallies were common and all of this language was already there. This didn’t happen overnight, they weren’t called woke then, but they championed the same message – women can never have true agency in a sexual relationship because of the inherent power differences. The paranoid climate is the same, it’s just gotten more militant and louder. It’s stupid.

            4. SHG Post author

              It’s fine that you had a different experience, but having been through this a few million times in the past, be circumspect about conflating your experience with a universal experience. There was a feminist PC push in the ’90s. There was one in the 70s too. They ebb and flow.

            5. jane

              Sandia, I was there too, and we had some wild sorority parties. While you were sucking on a whistle, I was … well, you know. Too bad you got caught up with the wrong crowd and missed the party.

    3. Ron

      Many of these things arose back in the 70s reflecting the lunatic fringe of feminism. I doubt SHG’s reference to Dworkin was mere coincidence. But these were not merely the lunatic fringe, but widely rejected by feminist women who were fighting for their right to make their own sexual choices, the right to be as sexually engaged as they wanted to be without daddy watching over their shoulder.

      1. norahc

        So it’s gone from the right to make choices to the right to make choices without consequences ir responsibility?

  2. Killer Marmot

    That they recognized the virtue of giving the accused any opportunity to defend himself against a college bureaucracy dedicated to sacrificing the male, innocent or guilty, and if guilty, of what, an offensive act or an entirely consensual act that morphed into “rape” a few years later, is to their credit.

    Ooof. Now there’s an awkward sentence.

    1. SHG Post author

      Yeah, some sentences get away from me, but then that’s what happens when you write extemporaneously. Want your money back?

  3. Jack Holden

    A close friend of mine in college was raped while unconscious and the administration went to truly remarkable lengths to keep her from reporting in any official way. That was 2011. But hey, that’s just one example.
    Five minutes on google found a 2015 survey of 483 women in college in which 26.7% reported being raped through violence or while incapacitated. A couple more minutes found several other studies with similar statistics along with a host of deniers citing the paltry number of rapes actually reported to the police.
    Do you think that these women are lying on anonymous surveys? Do you have any evidence to support your belief that these were not legitimate rapes?

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