In its own jerky way, the Department of Education’s Office of Civil Rights tried to put on a show this week by holding “hearings” over Microsoft Meetings about what changes should be made to the DeVos Title IX sex tribunal regulations, which became effective last August and have not as yet had much of an impact because of the pandemic.
Activists for changing the regs have argued that the number of women coming forward to complain has dropped precipitously because of the rigors of the regs, meaning that they can’t just grieve and win, but will have their accusation subject to scrutiny. Being scrutinized, they argue, is traumatic, and no doubt it’s true. It’s far less traumatic to just point, accuse and win. At least it’s far less traumatic for the accuser. The accused, not so much.
Whether that’s true that complaints have dropped is hard to prove. There is no way to test the claim and it’s hard to prove the negative. Of course, if true, the fact that colleges haven’t had in person classes because of the pandemic might play a role in reduced grievances, since it’s a bit harder to claim a sexual assault over a computer, though it’s been done.
On the whole, the “testimony” has been banal and unsurprising. On the one side, live hearings and cross-examination are claimed to be “traumatic” to “survivors” and “burdensome” to colleges who argue it’s more legalistic than “educational,” as if expelling male students is a pedagogical exercise. But then, what has been overwhelmingly clear is that the sides are female students, the “survivors,” and male students, the “rapists.” Who could have seen this coming*?
[Roberta Kaplan, attorney for Columbia University**]: Columbia University, like any other college or university in the country, was required to comply with the dear colleague letter by putting into place the regimen you and I were just discussing. It did so —
[Judge Lewis Kaplan, SDNY]: That’s a slight overstatement. I know everybody says that and I know the sense in which it is meant, but the dear colleague letter was not in fact a statute of the United States. Nobody would go to jail if they didn’t do it. There was an announcement of what the Department of Education then wanted which did not go through a rule-making for quite deliberate reasons and there were threats. That’s what it was.
As Judge Kaplan says aloud, “everybody says that” but it’s not true, as I’ve been chronicling here. The “discussion” is grounded in widely accepted fictions, from what the law requires to the claimed statistics to the claims of trauma that put the conclusion before the test and are unchallengeable both because its politically incorrect to question a claim of trauma and because it only exists within a claimant’s mind, there being no objective evidence to show whether it’s real or just a facile defense against scrutiny.
For this, you have to give credit to Catherine Lhamon, the former and soon-to-be-again head of OCR, who created out of whole cloth her vision of a campus system that produce the outcomes she so desperately desired.
MS. KAPLAN: Certainly, your Honor. There was a — I don’t know if I want to adopt the word “threat” but there certainly was a very legitimate concern expressed by the federal government and accepted by the universities that universities like Columbia, which accept enormous amounts of federal money, your Honor, for their science programs, their research, etc., that those federal funds could be taken away if Columbia did not comply with the dear colleague letter.
THE COURT: And you know somebody, with a different sort of backbone than I understand Columbia had at the time, could very well have said, well, try it and we will sue you. It’s not an act of Congress, we are not obliged to follow that.
It could have been done.
Indeed, it could have been done, but no one, no college, no university, did so. Perhaps it’s the lack of a backbone. Perhaps it was the result of colleges that decided it was in their best interest to embrace the Dear Colleague Letter, as the winds of grievance were blowing across their campus and this gave cover to campuses to pander to the sexual fragility of women incapable or unwilling to handle their sexual choices, their liquor or the failure of the police and legal system to appreciate their desire to be infantilized and protected from question.
As the testimony at the Title IX hearings reveal, the DCL created an expectation starting in 2011, bolstered by a litany of claims and statistics that lack any legitimate support but have been repeated with enough frequency that they’ve become the “reality” of campus sex policing.
While the DeVos regs are imperfect and could stand some tweaking, particularly clarification of the rule that appears to prohibit introduction of a statement against interest by a person who refuses to testify at a hearing, they are fighting against a phantom belief of what the law is, what the law requires. Title IX doesn’t require any of this. Lhamon never bothered with the APA to craft legitimate regulations. Even the definition, based on the Supreme Court’s test in Davis v. Monroe County Board of Ed,, that harassment must be “severe, pervasive and objectively offensive,” is being challenged because Lhamon bastardized the test by omitting some words and changing the conjunctive to the disjunctive.
The DeVos regs were a reaction to the Lhamon DCL, fighting a “law” that was never a law, that had no legitimate authority and that colleges, if they had the backbone or desire, could have rejected. Instead, an industry arose around and supporting Lhamon’s fantasy. The hearing being held now is the battle between law that never was but, as Judge Kaplan rightly notes, “everybody says that.” Of course, just because “everybody says that” doesn’t make it real.
*Transcript courtesy of the indomitable KC Johnson.