The ability of Congress to choose between administrative systems weakens the separation-of-powers system.
Feminism expresses, teaches, and even thrives on a contradiction. Put simply, feminism does not know whether to say that women are capable or vulnerable. If women are capable, they deserve to be independent—particularly of men. If they are vulnerable, they need to be protected, particularly from men.
Today’s movement to protect college women from sexual assault, led by the Office of Civil Rights (OCR) in the U.S. Department of Education, is riven right through with that contradiction. So far, universities have meekly submitted to being instructed by what the OCR, with a phrase for the books, calls “significant guidance.”
Before delving into the OCR’s mandate, it is best to examine the contradiction within feminism that both characterizes and inspires it.
The fundamental assertion of feminism is that women are equal to men, and equal not as counterparts to men—remember a husband’s proud, or ironic, praise of his “better half”—but equal every which way. Feminists reject the idea of “nature,” which is now put in quotation marks and, as they say, “problematized.”
Nature in the classical tradition refers to the whole of things composed of natures, with distinct definitions. Thus men and women each have natures defining them, distinguishing them, and joining them. As against this sort of thinking, feminism declared its opposition to all such definitions or essences, and crowned “essentialism” as the devil inspiring all oppression of women by men.
Having no essence, women are urged to define themselves, and to make an “identity” of their own that is not given by nature (or made for them, to serve the convenience of men).
The new identity that feminism makes for women is to have the same freedom as men. A woman can become independent of men by learning how to imitate them, thus making actual men dispensable while retaining the use of all their qualities.
To prove that women can do everything men do, the most logical feminists find it necessary to practice men’s excesses, or at least boast of them—announcing with satisfaction that the murder rate by women is rising or discovering that rape is a gender-neutral crime that women too have the force and malice to commit. A strange independence of men that requires slavish imitation of their faults!
The old-style feminists—the suffragettes—had demanded the vote for women because they thought women were more moral than men. But if it were true that women excelled men in any one respect, there would be a danger that men might excel them in some other respect. It is a pain and a drag on one’s freedom, today’s feminists proclaim, to be held more moral than others and hence less aggressive. Not to mention that it smacks of essentialism. The answer: No more feminine modesty! Women must now take a risk and show their independence by imitating the most risk-loving males. In sex, this means adopting the ideal of sexual liberation in theory and in practice consorting with the most predatory males.
We have followed the logic of feminism to its culmination in the acceptance of risk. Of course, the greatest risk is to be found beyond the bounds of nature, where one is left to one’s own devices, alone in unguided freedom—so to speak in space, like the actress Sandra Bullock in the movie Gravity.
Yet this is by no means the whole of feminism. In the new situation of total risk, feminists feel uncomfortable. In fact, devil-may-care is not the sort of life they welcome. Like Sandra, they find that the Earth, with all its limitations, is where they want to live. They want company, not merely as witnesses to their daring (as men might) but as “support”—a word women like to use, particularly when thanking people. Gratitude for support means that they want to be supported.
Since a woman can no longer count on the support of her husband—having dispensed with it—she needs to be able to call the police in case of trouble or a social agency in case of penury or a lawyer in case of discrimination. She needs to ensure that her independence is protected and nurtured by an environment that is not “hostile.” The riskier her life, the more protection she needs; so we have the paradox of an enormous increase in women’s liberty combined with a comparable increase in governmental protection to ensure it in case of trouble.
Women are no longer the weaker sex, but they remain the more vulnerable sex. The new-old essence of women is vulnerability. Their exciting new sense of risk must be made riskless, their sexual adventures free of misadventure.
Vulnerability is obviously the contrary of independence. The vulnerable are not equal to the invulnerable, or, taking into account human mortality, which makes us all vulnerable, the more vulnerable are not equal to the less. To counter the disadvantage, government must not assume that women are equal, as seemed to be its duty at first if women are to be independent. Instead it must assume they are unequal and take steps to make them equal.
In this way, equality, once the presumption or precondition of feminism, now becomes its goal, to be reached by equalization of the unequal. The trouble is that the taking of steps to equalize women reveals the inequality stemming from their vulnerability, which is precisely what feminism’s enemies—patriarchy and its root cause, essentialism—had always claimed.
Hence feminism’s contradiction: presuming women as both equal and unequal to men, and as both lacking a definition and having one.
After this perhaps unexpected disquisition we may return to the OCR in the Department of Education. The OCR has decided to mount an aggressive campaign to extend its authority over sex discrimination into sexual harassment, violence, and other sexual misconduct. In so doing it repeats the contradiction in feminist theory we have seen: Protection against sex discrimination presumes that women are equal to men (since the law simply clears the way for their abilities to show themselves). Protection against sexual harassment and violence presumes that women are more vulnerable than men and thus unequal.
The OCR has fashioned a campaign of equalization to make women equal without admitting that doing so implies they are unequal. It uses the concept of “hostile environment” that was invented for sexual harassment in the workplace and applies it to sexual misconduct (up to and including rape) between the sexes in universities. In both settings the target is overbearing males. The difference is that in the workplace, unwanted sex gets in the way of business, whereas in the universities these days, wanted sex is the business at hand.
The notion of an “environment” comfortable to more mature women who want to be let alone to do their professional jobs becomes much more demanding as it is transformed into one in which the sexual encounters of an immature woman must be satisfactory rather than botched. Being equal to men, the young woman has, like them, the right to free sex in a friendly environment (which among other things means one that does not frown on extramarital sex). At the same time, being unequal to men, she needs protection unlike them so that she can say no at any stage.
In the universities a woman has the right to initiate an encounter as a man might do but then suddenly to call a halt at any point, as a man is unlikely to do. She can also regret the matter at the instant or later, and demand the intervention of the authorities on her behalf, also unlikely in a man. In such cases, she can report the man involved and accuse him of misconduct without fearing that he could or would accuse her of trifling with or frustrating his desire.
There is a difference between men and women that could readily be considered “natural” in having sex, especially in the loveless sex now endemic in universities: women appear to be not as capable (if that’s the right word) as men of walking away after having sex. To a man, a hostile environment for sex would likely be one he could not walk away from; to a woman, it would be one in which he could do just that. The OCR wants to give women the normal right of a man to pursue sex—that makes them equal to men—but also keep for them the normal right of a woman to say no to pleasure when a man would think, why not?
The non-hostile environment promoted by the OCR protects the right of women to imitate men and yet remain women and not imitate men.
The OCR has issued a set of regulations that compel the universities, starting this year, to change their policies in order to reduce, perhaps even abolish, sexual misconduct. It has now become the legal responsibility of a university to prevent the creation of a hostile environment in which students or staff or faculty might fear becoming the object of unwanted sexual attention.
Policing this gray area between what is criminal and what is acceptable is a new mission for the federal government. The fervent ambition behind it can be seen in the OCR’s warning that one single occurrence of sexual misconduct in a university can be the trigger for declaring it to be harboring a hostile environment.
The means for attaining this crazy goal are even more remarkable. In accordance with the feminist contradiction, women are in no way to be warned, nor men exhorted, to change their attitude toward sex. They do not have to abandon any of the “achievements” of the sexual revolution. The OCR does not declare any sexual conduct to be inappropriate, as in the old-time phrase that spoke of “conduct unbecoming a gentleman.” Whatever you can get your partner to consent to is all right with the OCR. No, the OCR confines itself to punishment for violations of the principle of consent, as described by the woman.
Well, not the “woman” but the “complainant.” The man is called the “respondent.” One could also say “accuser” and “accused,” but that is the language of criminal law. The OCR wants to reach misconduct that may verge on criminal but that for the most part stays within the realm of bad or nasty behavior short of crime.
Colleges have always had to deal within this realm because they need and must maintain the good behavior that sustains a community of learning. It is not that they put morality first, but that they aim to sustain learning with good character—or indeed, to use the OCR term, they want a moral “environment” friendly to learning.
To attain this, colleges must keep a watchful eye on current standards of sexual behavior, and strive to be neither too censorious nor too welcoming. They need to keep both sexes happy—the women who are vulnerable and now less accepting of their vulnerability, and the men who are as always the source of trouble yet are now in short supply in many colleges. On top of this, colleges must deal respectably with newly clamorous same-sexers who insist on devising new identities for themselves and others.
This is the testy situation the OCR barges into with its one-sided feminist regulations and near-complete disregard for the self-government of America’s universities. Its disregard is not quite complete to the extent that it falls to the universities to administer those regulations and punish the guilty. Every college or university is required to have a Title IX Coordinator whose task is to find the facts of a sexual complaint, leaving the determination of guilt and the degree of punishment to deans or other administrators.
At my college (Harvard), the Title IX Coordinator is actually a former employee of the OCR. Thus the imposition of the OCR regulations is an example of indirect government: the university pays for its very own federal director disguised as a coordinator and carries the can for any controversy or embarrassment that may arise from enforcing the OCR’s regulations.
The regulations are stunning in their presumptuousness. They are asserted with the force of law but were not passed by Congress or considered by the courts, nor were they formulated after a legally required process of hearings and comment. Equally stunning is the docility with which they have been received by the universities. Though there are signs of discomfort, not one has opposed an intrusion upon its self-government in a matter of educational discipline that had previously been left to it.
One could go on to explain features of the new OCR policy that make it a danger to civil rights, as indeed has been done in a published petition by a number of Harvard law professors. The due process rights that will not be protected by the new policy are: a hearing, the right to confront or cross-examine witnesses, the right to an attorney, the right of appeal to a neutral party, protection against double jeopardy, the right to a presumption of innocence, the right to have one’s case heard by an impartial arbitrator. The new standard of misconduct requires less evidence than before, as it is necessary only to prove guilt by “the preponderance of the evidence” rather than “beyond a reasonable doubt.”
As to free speech, the new policy requires what amounts to a speech code laying out what is impermissible to say. Innuendo, gestures, remarks, hints that give offense, whether objectively or subjectively, will be punished, particularly if they endorse or imply “sexual stereotypes” of masculinity or femininity. These specifications will be taught to people who may resist them, or indeed taught to all, in courses of OCR-approved “training.”
The new policy cares nothing for the reputation of the university or the privacy of the parties to an incident. On the contrary, the bureaucratic mission of the OCR is to find and publicize as many incidents of sexual assault and misconduct as possible. Damage to the university’s reputation is welcome, as furthering the mission, and privacy of the parties is explicitly subordinated to the shaming of the guilty and of the institution.
Shaming has long been the main strategy of feminism. The OCR’s use of indirect government—getting the universities to punish themselves rather than be punished by the government with loss of funding—is a mode of shaming them into proper behavior. It is almost unnecessary to remind readers that, under patriarchy, shame was regarded as a woman’s weapon. It is by the woman’s weapon that the woman’s essence is to be jettisoned.
Shame works by getting its object to blame himself rather than being blamed by others. So the woman’s weapon must not be seen to be wielded by the woman. The whole policy and all its processes are wrapped in the language of gender neutrality. A fog of make-believe legalistic formalism pervades the policy, its proceedings, and its advocates. Nowhere is it avowed that its true purpose is to punish men.
Feminists are not wrong to think that rape is a danger and a terrible harm. But they increase the risk of rape by encouraging women to prove themselves equal by rushing into casual sex with men they do not know. The result is to provide a field day for predatory males. The result is also bad for most women and most men, who do not want to play the aimless pleasure game of loveless sex.
Although both the OCR and the universities pursue the feminist agenda, the difference is that the universities have a responsibility, in fact an urgent need, to maintain a friendly environment for the learning of all students. Their main task, which they sometimes forget, is to promote learning, not to punish immorality. And as to the latter, universities need to maintain a community that provides for the comity of both sexes, allowing for their differences so that both are reasonably satisfied. Their new mission, though, is impaling everyone on feminism’s contradictions, which is unlikely to satisfy anyone.
This is a condensed version of an article that appeared originally in Defining Ideas, a journal of the Hoover Institution.