Editor's note: Remarks given at the National Association of Scholars conference on “Disgrace: Shame, Punishment, and Redemption in American Higher Education," January 12, 2019.
The Department of Education (DOE) has proposed new rules related to sexual harassment in American schools and colleges. The proposed rules are an improvement in many ways. But I think that conservatives should still approach them with caution.
In what follows I’m going to review briefly the history that’s led to the proposal of the new rules. I’ll summarize some of the salient points from the proposed regulations. Then I’ll share some of my concerns. Because I believe that it is the most important area touched upon by these rules, I’m going to focus here solely on the case of harassment between students (not faculty or staff and students).
Before I begin I’ll state what I hope is obvious: sexual violence and sexual assault have no place in schools. Schools have a moral responsibility to discipline such behavior. They also have a duty to facilitate law enforcement’s investigation of these crimes.
Title IX of the Education Amendments of 1972 prohibits institutions that receive Federal financial assistance from discriminating on the basis of sex. DOE develops regulation to enforce the law and monitors institutions for their compliance. Over the last two decades, DOE has largely done that work through “guidance.” This guidance has come in the form of “Dear Colleague Letters” (“DCLs”) “Q&As,” and other documents (such as those offered in 1997 on sexual harassment, in 2001 revising the 1997 guidance, in 2003 on claims of harassment and their relation to students’ first amendment rights, in 2010 on bullying, and, most famously, in 2011 on sexual violence, along with a 2014 “Q&A” document building on the 2014 letter). Observers credit the 2011 DCL with a significant increase in complaints and investigations. These include over a hundred suits by men accused of sexual harassment, who complain that institutions discriminated against them on the basis of sex.
The trend of these two decades’ of guidance has been to expand the behavior that is actionable under Title IX, to lower the burden of proof in investigations of harassment, and to protect accusers from a “hostile environment.” Many believe that this protection has come at the cost of the due process and other rights of the accused. As an example: the story of John and Jane Doe at Columbia in May 2013. John and Jane were both students, and after a late-night stroll “hooked up” in Jane’s dormitory suite’s bathroom. No force, no reduced capacity for consent. The next school year (September 2013) John learned that he was the subject of a sexual harassment complaint. The Title IX coordinator did not inform John of all his rights, did not interview his witnesses, and ignored exonerating evidence. By early 2014 the Title IX coordinator and a university panel found John responsible for “sexual assault” because he had inflicted nonconsensual sex on Jane. This finding was based not on the activities of the night in question but rather on the claim that he had pressured Jane over a period of several weeks prior to that night to have sex with him. Columbia suspended John for the equivalent of a year-and-a-half. John appealed. Even Jane appealed to lessen his sentence. Columbia denied his appeal. Through his eventual appeal to the 2nd Circuit Court of Appeals in 2016, John’s case became an important building block for other appeals by men who claim to have been discriminated against in Title IX proceedings.
A little later in 2016, we had an election. As a result of that election, in late 2017 the new Secretary of Education withdrew the 2011 DCL and 2014 Q&A. She also began the process for proposing new rules governing claims of sexual harassment. The proposed new rules were published on November 29, 2018, for a 60-day public comment period. That period ends on January 29.
- For the first time, the rules will be rules, not rulemaking under the name of “guidance.” Rulemaking allows for public comment and participation. This transparent, democratic process builds trust.
- For the first time, for the purposes of Title IX, the Department will define what constitutes sexual harassment. “The Department defines ‘sexual harassment’ to mean either an employee of the recipient [the school receiving Federal funds] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or sexual assault as defined in 34 CFR 668.46(a), implementing the … Clery Act.”
- The new rules try to treat the accuser and accused equally. This treatment extends to increasing due process provisions, such as that the accused shall be considered not responsible until a determination is made, both parties shall have the right to inspect all evidence, evidence shall not be favored based on its coming from the accuser, both parties have a right to representation, both shall have notice of hearings—there shall be live hearings—both shall have the right to live cross-examination (by their advisors), both shall have the right to inspect all evidence, cases shall be judged by the higher “clear and convincing evidence” standard rather than the weaker “preponderance of the evidence” (unless the school wants to judge all serious cases—including against faculty and staff—by the weaker standard), schools cannot use a “single-investigator” model, the accuser will not have a right to appeal for particular sanctions against the accused, and in general nothing in the regulations requires schools to restrict individuals’ Constitutional rights (such as free speech). This list reminds us of how much is missing in the current regime.
Provisional conclusion: this is good. Elections matter.
I’m not going to repeat the National Association of Scholars’ public comments, which ask DOE to require that schools make their training materials public, limit the standard of proof to “clear and convincing,” and eliminate the possibility of double-jeopardy via appeals. I’m also not going to dwell on the concern that schools will likely do whatever they can to find ways around these new rules. The rules themselves justify this concern: the proposal calculates that at least 45% of schools continue “Title IX activities at the level required under the 2011 DCL or the 2014 Q&A and will continue to do so after final regulations are issued.” Further, the proposal assumes that between 15% and 67% of schools will “conduct activities beyond those required for compliance with the final regulations” And schools and other organizations are fighting these new rules now and will likely fight them in court. I doubt that the current regime is going away anytime soon.
But if we imagine the new rules in place, I still have some concerns:
- Title IX governs schools. But it is students who will continue to be punished. As a result, Title IX regulation confronts the individual with the power of the Federal government, regarding a matter of the greatest intimacy—sexual desire—in the context of an activity of the greatest importance—education. The more the rules detail and prescribe the “grievance process,” the clearer that confrontation becomes. Do we want that? Now, it may be prudent to accept the new rules versus the old regime. Still, Title IX’s original focus was on schools. The object of these regulations has become, primarily, students, and an aspect of students’ lives that transcends the boundaries between different schools. When did we become comfortable with the State policing students’ sexual lives?
- The new rules emphasize that they do not abridge anyone’s Constitutional rights. They rely on concepts of consent or “welcoming” (a term even looser than consent), concepts that affirm individual’s rights and freedom. Very well. But, as important as it is, can the language of “rights” ever do justice to the experience of eros? If the Great Books teach anything, it is that sexual desire is a complex matter that involves choice and consent (to be sure) but is also shaped by shame, love, pride, infatuation, duty, faith, the vagueness and precision of speech, the deftness and clumsiness of customs, as well as some of the most intense passions. Insofar as the new rules deepen the commitment to approaching these matters through the lens of rights—and insofar as they may prompt both men and women to claim the status of “victim” of discrimination—do we truly expect them to help schools decide these cases more rather than less wisely?
- Finally, doesn’t this debate about the new rules obscure the most serious matter: the chilling of student and faculty speech and thought when it comes to anything related to sex? DOE guidance asserts that Title IX does not proscribe certain words. But the new rules also acknowledge that many people believe that Title IX “protects” students from expressions or ideas they deem offensive. For example, schools are (still) required by Title IX to engage in “preventive” training of students, faculty, and staff, training which focuses on “risk factors” (such as “adherence to traditional gender norms”) that supposedly lead to sexual violence. In some cases, this training tries to teach students “healthy” ways of engaging in sex, such as expressing both “sober” and “enthusiastic” agreement at every stage in a sexual encounter. This is absurd. But it has its effects. Surveys of students corroborate that many of them censor their statements in class for fear of being seen as “insensitive.” That is shame, and it is a shame.
I’ll end with a sentence from the political philosopher Kurt Riezler’s 1943 “Comment on the Social Psychology of Shame”: “In a sexual intercourse that we imagine to be the mere satisfaction of a biological urge and without a tinge of love shame insists on being present; without love, the companion becomes the observer.” That is the state of anything related to sex under the old and the new rules: someone is always watching.