The Title IX Show Trials

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The affair of Laura Kipnis, writer and professor at Northwestern University, has two salient aspects: In the general, the episode joins Senator Sheldon Whitehouse’s recent call for RICO investigations of those who hold nonconforming views on global warming as an item on the ever-lengthening list of so-called liberals’ schemes for using the machinery of the law to silence their critics; in the particular, it is an example of why the Justice Department’s direction to college administrators regarding Title IX and sex discrimination should be repealed.

Professor Kipnis, a liberal and feminist in otherwise good standing, wrote a column in the Chronicle of Higher Education arguing that college campuses are in a state of “sexual paranoia,” with the students’ sense of feminist propriety honed to such exquisite fineness that “an unfunny joke was likely to create lasting trauma.” This is, Professor Kipnis argued, not only a question of moral climate but also of legal environment, with the anti-discrimination features of Title IX having been interpreted so broadly that everything from remarks that are perceived as insensitive to rape is lumped together in a catch-all category of burdens upon women. “In the post-Title IX landscape,” she wrote, “sexual panic rules. Slippery slopes abound.”

In response to this article — in response to a professor expressing her views in print — two graduate students at Northwestern filed a legal complaint against Professor Kipnis. Naturally, the complaint about her criticism of the overbroad application of Title IX was filed under Title IX. What followed was a mock trial that veered between the Stalinist and the Kafkaesque: The accused was kept in the dark about who her accusers were and even about what the specific charges against her were. She was permitted to bring in a “support person” — a sort of character witness — who subsequently was forbidden from speaking at the proceedings; a Title IX complaint was immediately filed against the silenced support person as well. Professor Kipnis was accused of “retaliation” on the theory that her criticism would have a chilling effect on future complainants, and then she was asked whether she desired to retaliate against her accusers by filing — you’ll have guessed this — a complaint against them under Title IX.

Trigger warnings, sensitivity seminars, ruthless speech-policing and thought-policing, the neo-Victorian cult of feminine fragility: “Among the problems with treating students like children,” Professor Kipnis wrote, “is that they become increasingly childlike in response.” Children, yes — but less like bawling kindergartners and more like those malevolent young fanatics from Children of the Corn.

However creatively/abusively one interprets Title IX, it is superseded by the First Amendment. The obvious response here is that however creatively/abusively one interprets Title IX, it is superseded by the First Amendment, which surely covers opinion articles written in professional journals. That two adult women should pronounce themselves traumatized and discriminated against because a professor disagrees with their general worldview and expresses that disagreement on a public-policy matter is both terrifying and hilarious; it also has made Professor Kipnis’s criticism a self-proving hypothesis.

Title IX is as a matter of language reasonably straightforward: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” But politicians are clever little gluttons for power, and so out of that modest timber, a vast temple to the goddess of asininity has been constructed. This was enabled in part by some “Dear Colleague” shenanigans on the part of the Department of Education’s Office of Civil Rights in 2011, which wrote an instruction letter that features all of the usual defective elements of such guidance: the “hostile environment” standard, which makes offenses a question of subjective third-party emotional entanglements rather than a question of demonstrably wrongful conduct; the “preponderance of evidence standard,” even in cases in which a crime is alleged to have been committed, thus calling for higher standards of evidence; subjecting the accused to double jeopardy; the reliance upon quasi-judicial processes while exempting campus administrators from notifying actual law-enforcement agencies in the case of serious crimes, including rape; the authorization of anonymous complaints; the conflation of very different phenomena (discriminatory academic policies, sexual harassment, rape) as though they were a unitary phenomenon; the gutting of traditional investigatory standards (“OCR does not require schools to permit parties to have lawyers at any stage of the proceedings”); the deputizing of academic institutions to investigate crimes such as rape, a highly technical endeavor in which the dean of students typically has no expertise.

That there should be a body of federal civil-rights law governing boorish behavior at undergraduate mixers is in and of itself contemptible. But if there is to be such a law, let Congress pass it — the under-the-table creation of federal law through “guidance” letters is an invitation to catastrophic legal malfunction, which is precisely what we are seeing at work in these Title IX inquisitions. Even the proliferating regulator-produced administrative law that conservatives rightly criticize is subject to comment-and-review processes, something to which these “Dear Colleague” letters are not. Indeed, this approach is something like extortion: The government is not saying in these letters that this is the law, per se, only that you might be found to have violated the law if you do not do as instructed. This is arguably a violation of the Administrative Procedure Act, which was put into place specifically to constrain this sort of abusive regulatory adventuring.

It would be good if our laws were the product of our lawmakers. But in this case it would better that no such law should exist: Universities are capable of setting their own standards of conduct and enforcing them, as they have been doing for some centuries. Treating rape as a matter of academic misconduct to be handled by deans of students rather than as a violent crime to be handled by police and prosecutors is a gross disservice both to victims and those wrongly accused, who are entitled to the full protections of the American criminal-justice process, including the presumption of innocence.

If there is discrimination against women in our colleges and universities, it must be very, very subtle: Four women take an undergraduate degree for every three men, and in a great many academic areas, the sex ratios are even more lopsided than that. Despite the claims of an “epidemic” of sexual assault on our college campuses, the documented reality is that rape is less common on campus than it is off campus, and it’s radically lower in both contexts today than it was 30 years ago. There is no crisis — and there certainly is no crisis that justifies suspending the First Amendment and the tradition of academic freedom in order to prosecute a professor for chronicling higher education in the Chronicle of Higher Education.

The DOE’s 2011 guidance letter on Title IX should be rescinded at the first opportunity, and further steps should be taken to distinguish sex discrimination from misbehavior and both of those from violent crime. We’d add that everybody involved should take a deep breath and start acting like grown-ups, but that would be wishful thinking when it comes to the people who put the “loco” in in loco parentis, which is itself a funny principle to be applying to people who are, after all, adults, their infantile behavior notwithstanding. Read more at:

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