The last word is no longer with the campus Title IX office, or the Oval Office, but is instead with controlling federal appellate authority.
Secretary Betsy DeVos recently announced that the Department of Education’s Office for Civil Rights will review the controversial Title IX guidelines on sexual assault and other forms of sexual harassment disseminated by the Obama administration. The new leadership at OCR has already made an important change in enforcement policy: no longer does it follow the 2014-2016 strategy of turning every sexual violence complaint filed by an individual into a well-publicized compliance review of the entire educational institution in question.
This decision unleashed a torrent of criticism from the Democratic Party, with 34 Democratic Senators telling Secretary DeVos that they were “extraordinarily disappointed and alarmed” by it. Twenty Democratic state attorneys general wrote “to express our serious concern over reports that your office is preparing to roll back important protections for survivors of sexual assault on college campuses.” The editorial board of the New York Times called it “Another Sign of Retreat on Civil Rights.” An op-ed in the Times by John Krakauer and Laura Dunn set the tone of the coming debate: if the Trump administration succeeds in revising Title IX guidelines, “The result may make colleges safer. For rapists.”
The press has focused primarily on the procedures that federal regulators require schools to use in addressing sexual assault accusations—especially the demand that schools use a “preponderance of the evidence” standard in disciplinary proceedings. (If investigators or a hearing board find the accuser only slightly more credible than the accused, they must find the accused guilty of sexual misconduct.)
Anyone who has read either of two new books, The Campus Rape Frenzy by K.C. Johnson and Stuart Taylor, Jr. or Unwanted Advances by Laura Kipnis, will know how thoroughly many colleges have trampled upon the due process rights of accused students. Among those who have sounded the alarm are law professors (including prominent feminist and African American scholars) at Harvard, who charged their institution with “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” A task force of the American College of Trial Lawyers warned that “OCR has established investigative and disciplinary procedures that, in application, are in many cases fundamentally unfair to students accused of sexual misconduct.”
Moreover, schools pushed into instituting new rules by the OCR have repeatedly been castigated by state and federal judges. A federal district court judge in Massachusetts described the process used by Brandeis University as “closer to Salem, 1692, than Boston, 2015.” In Yolo County, California, a judge charged that “due process has been completely obliterated” by the actions of the University of California, Davis.
It is important to understand, though, that the “preponderance of the evidence” standard is just a minor part of the OCR’s procedural requirements, and its procedural requirements are only one piece of an ambitious set of demands that apply to every educational institution in the country. The real due process problems caused by the OCR stem from the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a “single-investigator model” that turns one person appointed by the school’s “Title IX Coordinator” into a detective, judge, and jury; and the intense pressure for schools to show they are “getting tough” on sexual assault.
Fiddling with the burden of proof alone will make little difference.
Disregard for due process is only one of the problems with the rules that the OCR announced unilaterally between 2010 and 2014. The agency’s broad definition of harassment threatens free speech. It requires schools to provide annual “training” for faculty, staff, and students designed to reeducate them on all matters sexual. It demands that schools establish large and autonomous internal Title IX compliance offices that will remain in place long after the OCR changes its formal policies. All this is necessary because the goal is not just to punish those guilty of sexual assault, but to “change the culture” in schools and the broader society. As a special Obama White House task force declared, “According to the experts, violence prevention can’t just focus on the perpetrators and the survivors. It has to involve everyone.”
To understand the ambitions that lay behind the OCR’s campaign under the previous administration, one must examine how the agency’s approach to the sexual assault/sexual harassment problem diverged from previous judicial and administrative policy. The Education Department had said little on the subject until the early 1990s. Initially it adopted the approach developed by federal courts and the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act. The EEOC and the judiciary designed a tort-based approach to address a problem that had not even been named when Congress enacted Title VII in 1964 and Title IX in 1972.
While the liability rules that slowly emerged are complicated, they can be quickly summarized: Employers were strictly liable for most forms of harassment committed by supervisors. For harassment by non-supervisory employees, courts would apply the “known or should have known” liability standard. Employers could protect themselves against potentially expensive and embarrassing litigation by establishing clear grievance procedures and taking swift action against those engaging in misconduct. Neither the courts nor the EEOC offered much guidance on how these grievance procedures had to be structured, or on what constituted “harassment.” Their goal was to create strong incentives for employers to institute policies that would eliminate behavior judges and juries would consider serious enough to constitute sex discrimination.
This framework—solidified by two Supreme Court opinions concerning Title VII, both handed down in 1998—has proven quite successful in practice. Labor law experts Michael Harper and Joan Flynn describe this as a rare instance in which “the Court not only brought much-needed clarity to the law, but also produced a coherent and logically defensible rule with which both plaintiffs and employees could readily live.” The rule was approved of by everyone from women’s rights activists to the Chamber of Commerce to federal trial judges.
Well, not quite all women’s rights activists. Feminist legal scholars had long criticized this tort-based approach. The most prominent critic has been Catherine MacKinnon of the University of Michigan Law School, in some ways the godmother of contemporary sexual harassment law. Tort theory is inadequate, MacKinnon argued, for it treats “the incidents as if they were outrages particular to an individual woman rather than integral to her social status as a woman worker.” It attempts only to shave off the tip of the patriarchal iceberg: “Tort law considers individual and compensable something which is fundamentally social and should be eliminated.” Rather than focus on the crass, immoral, or unethical behavior of a few individuals, the law should see “women’s situation as a structural problem of enforced inferiority that needs to be radically altered.”
Ironically, it was another pair of Supreme Court decisions, these two narrowing schools’ liability for sexual harassment under Title IX, that led the OCR to reject the tort-based approach and move toward MacKinnon’s structural inequality model. In Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County School Board (1999), the Supreme Court held that under Title IX a school can be held liable for damages only if an official who “has authority to institute corrective measures” has “actual knowledge of, and is deliberately indifferent to” the misconduct. The Court also limited schools’ liability to instances of “systemic” harassment, and stressed that judges “should refrain from second-guessing the disciplinary decisions made by school administrators.”
These decisions were greeted with scathing criticism from women’s groups and legal scholars. It was suggested in one law review article that Gebser and Davis had caused “the metastasization of the sexual harassment epidemic in educational institutions.” Critics supported legislation to overturn them, but it has never gotten out of committee.
On the very last day of the Clinton administration in 2001, the OCR issued guidelines laying out directives that went well beyond what the Supreme Court had required. It justified its departure by claiming that the Court’s interpretation applied only to private suits for damages, not to requirements imposed by federal administrators.
On the one hand, this allowed the OCR to spell out in detail “a school’s Title IX responsibility to take effective action to prevent, eliminate, and remedy sexual harassment occurring in its program.” (Note the words “eliminate” and “remedy.” This went far beyond anything previously required under either Title VII or Title IX.) On the other hand, this left OCR without an effective enforcement mechanism. In the 45 years since enactment of Title IX, it has never—not once—used the only enforcement tool explicitly established by that law: termination of an offending school’s federal funding. It had relied instead on “implied private rights of action,” that is, lawsuits filed by private parties, to give enforcement teeth to its rules.
If the judiciary was no longer going to serve as its enforcement surrogate, how would the OCR make schools comply with its strictures? That question went unanswered for a decade. During President Obama’s second term, the OCR and the White House came up with a two-part answer.
First, the agency would depart from its longstanding practice of publicizing investigations only at their conclusion. Now it would publicize them at the outset to help induce schools to sign legally binding compliance agreements.
Second, each sexual assault complaint filed by an individual against a college would automatically trigger a compliance review of the entire institution. Compliance reviews were extensive and expensive, and often dragged on for years, threatening to tarnish the reputation of the institutions under investigation. In other words, the investigatory process became the punishment. Many colleges acquiesced to the OCR’s demands to avoid such an ordeal.
The regulatory requirements announced in the OCR’s 2011 Dear Colleague Letter on sexual assault, its 2014 “Questions and Answers on Title IX and Sexual Violence,” and its many compliance agreements are far too numerous to recount here. (I explain them in my forthcoming book, The Transformation of Title IX: Regulating Gender Equality in Education.) Suffice it to say that they lay out in detail the structure of disciplinary procedures (just the type of “second-guessing” the Supreme Court had told judges to avoid); the remedies they must provide not just to victims of assault and harassment, but to the student body as a whole; the training that schools must give all employees and students to prevent future misconduct; and the authority schools must grant to their internal Title IX compliance offices.
In 2010, then-assistant Secretary of Education for Civil Rights Russlynn Ali told reporters that the administration’s Dear Colleague Letters and enforcement practices represented a “new paradigm” for dealing with sexual harassment. No longer would the focus be on identifying and disciplining perpetrators. Now the goal was to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence on our college campuses across the country.”
Repeated references to an epidemic by the OCR and by advocacy groups are not just overheated rhetoric. Behind the talk of “rape culture” lies a certain worldview: violence against women is so deeply engrained in our society that we hardly see it; and existing institutions will do nothing about it until they are reconstituted. Understanding the problem in this way requires us to change how we think about sex, gender, and sexuality.
There can hardly be a more sweeping educational undertaking than “changing the culture.” That is why no word is repeated more frequently in the OCR’s policy directives than “training.” Schools must provide regular training not just for investigators and adjudicators, but for all students, faculty, and staff, usually at least once a year. The agency requires prior approval of schools’ training programs, and dispenses lots of advice on what should be included. According to the OCR’s agreement with Tufts University, for example, training must cover “victim behavior, dynamics of power, [and] implicit bias.” Dynamics of power? Should federal administrators be determining what schools teach their students on this politically loaded topic?
In their important 2016 California Law Review article on this subject, Harvard Law Professors Jacob Gersen and Jeannie Suk note that the “college sex bureaucrats” who run these federally mandated programs “are not simply training students on the rules of rape, sexual assault, and sexual harassment.” Rather, they are
instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire. . . . This jibes well with the public health framework that has so strongly influenced the federal regulatory orientation to sexual violence. Since the sex bureaucracy’s role is regulating health and safety, explanations of consent easily lead to instruction about what is “healthy” or “positive” in sex and relationships.
“Changing the culture” means changing how people think. That is why schools are required to exert control not only over the behavior of their staff and students, but over what the OCR calls “verbal conduct” (and the rest of us call speech). Its definition of sexual harassment includes “unwelcome” sexual advances “whether or not they involved physical touching.” This includes
making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written material; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Web sites of a sexual nature.
The guidelines also prohibit “sexual-stereotyping,” which includes “persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity.” To violate Title IX laws against sexual harassment “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”
Under pressure from the OCR and student activists, many schools have broadened their definition of sexual harassment to prohibit even more forms of speech. Harvard’s code prohibits “sexually suggestive innuendoes” and even “commenting about . . . an individual’s body.” Marshall University defines harassment as any expression that causes “mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment.” Colorado State University at Pueblo defines it as the “infliction of psychological and/or emotional harm upon any member of the University community through any means.” While the OCR’s regulations are hardly the only threat to freedom of speech on campus, they are a significant one and a source of institutional support for students, faculty, and college bureaucrats eager to ban speech they find offensive.
Federal administrators have been savvy enough to understand that pressuring schools to sign compliance agreements would not be enough. They needed to establish offices within schools. The internal Title IX compliance offices mandated by the OCR have proved ambitious as well as expensive. Since 2013, Swarthmore, a college with only 1,500 students, has appointed four new Title IX deputy coordinators and a Title IX Fellow plus a “violence prevention educator and advocate” in its health center and a new sexual misconduct investigator in the college police department. By 2016, Harvard had 50 full-time and part-time Title IX coordinators, and Yale had 30. The University of North Carolina now has seven full-time Title IX compliance officers. This is a good example of how expanding government regulation increases the number and influence of academic administrators—an institutional shift of great significance for higher education.
These compliance offices do not limit themselves to responding to accusations of assault and providing support to survivors. According to Harvard’s new sexual assault office, “rape culture is ubiquitous,” it is the product of gender inequality, and “addressing gender inequality requires reflection, action, and vision that is rooted in an anti-oppression, social justice framework.”
The extent to which serious efforts to provide professional help to those who have experienced sexual assault have been combined with ideological proselytizing is evident in Princeton’s 2017 description of a new position for an “Interpersonal Violence Clinician and Men’s Engagement Manager.” Only one third of this person’s time will be devoted to providing counseling services. The rest will involve “promoting an environment for healthy male social development by challenging belief systems and social constructs that contribute to violence and offering alternative options.” Applicants must “possess knowledge about the challenges and privileges of male identity formation and the relationship with violence” and must demonstrate “expertise in and [be] committed to social justice issues.”
In short, Title IX compliance offices are engaged in relatively open political indoctrination as well as subtle efforts to curtail freedom of speech.
The Department of Education cannot repair all the damage done by the regulatory excesses of the previous administration. Many of these college sex bureaucrats will remain in power regardless of what federal regulators do from now on. What the Department can do is initiate a serious, comprehensive, and open rulemaking process that brings administrative policy into line with the Supreme Court’s interpretation of Title IX and refocuses its efforts on ensuring that schools provide equal educational opportunity to all students regardless of their sex—and not engage in a hubristic effort to change American culture on all matters relating to sexuality.