Since the release of Unwanted Advances: Sexual Paranoia Comes to Campus, a recurring theme in public disagreement regarding the book has been that if critics believe the book is in error, they should be specific, and provide evidence, while critics were hesitant to do so when it seemed that would only further violate the privacy of those depicted in the book. Whether or not there were errors in the representation of events at Northwestern may be adjudicated in a more appropriate venue than blogs and Facebook now, anyway – but one thing I’ve found odd about this dynamic is that there are errors in the book about matters of public record.
Consider this passage:
“In 2011 the Department of Education’s office for Civil Rights (OCR) expanded Title IX’s mandate from gender discrimination to encompass sexual misconduct (everything from sexual harassment, to coercion, to assault, to rape), issuing guidelines so vague that I could be accused of ‘creating a hostile environment on campus’ for writing an essay. These vague guidelines (never subjected to any congressional review) take the form of what are called, with faux cordiality, ‘Dear Colleague’ letters—note the nebulously threatening inflections of overempowered civil servants everywhere.” (p. 36 of Unwanted Advances)This is false. The 2011 Dear Colleague Letter (DCL) is controversial — but it’s not because it expanded the scope of Title IX to include sexual misconduct. Title IX already covered sexual misconduct. Rather, it’s because in that letter, OCR issued guidance that schools should use the preponderance of the evidence standard when adjudicating sex discrimination complaints, including complaints of sexual misconduct.
As background for folks who aren’t familiar with the history, Title IX was passed by Congress in 1972. The full text of the law reads:
"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."It’s a common misperception (and one Kipnis seems to suggest in various places) that Title IX was passed in order to address funding equity in athletics, but it actually wasn’t written with discrimination in athletics in mind. Regulations regarding its applicability to athletic programs weren’t issued until 1975. The NCAA challenged the legality of Title IX a few months later as a result (the suit was dismissed). In the following years, the increase in women’s athletic opportunities as a result of Title IX was one of the most salient effects of the law, which is probably why so many folks came to associate Title IX with women’s sports. The intent, though, was to prohibit sex discrimination in federally-funded educational programming generally. But — and here’s the relevant historical point — in 1980, an appeals court affirmed that sexual harassment constitutes a form of sex discrimination under Title IX. The famous case, Alexander v. Yale, had been brought by five Yale students who were advised by Catharine MacKinnon. They lost the case, but got what they were asking of the court anyway (that Yale implement sexual harassment grievance procedures) as well as a place in landmark legal theory.
In other words, sexual misconduct on college campuses has been legally recognized as a Title IX matter for nearly four decades, and not just since 2011. Sexual harassment is prohibited by Title IX because it’s a form of sex discrimination, and sexual assault is prohibited because it’s an extreme form of sexual harassment.
To be clear, I am by no means a Title IX expert. I am no expert of any kind on any legal matter; I’m a student (in philosophy, at Northwestern), not an attorney. But that’s sort of my point about the oddness here — I’m not an expert, I’m not writing a book about Title IX matters, and even I know that the 2011 DCL did not expand the scope of Title IX to include sexual misconduct.
If you read the 2011 DCL, some of the evidence that this is false is contained within the letter itself (e.g., some of the case law it cites demonstrates sexual harassment was prohibited by Title IX before 2011). The 2011 DCL also refers to earlier guidance from the OCR regarding sexual harassment (sexual harassment is referenced in Title IX guidance from 1997, 2001, 2003, etc.). Some of the most notable instances of criticism of the 2011 DCL also include references to this same information. For instance, the letter sent to the OCR by Will Creeley on behalf of FIRE shortly after the 2011 DCL was released, makes clear that FIRE’s concern with the letter was not that Title IX should not be understood to protect students from sexual misconduct but rather centered around questions of due process and appropriate evidentiary standards. Responses to those criticisms of the DCL by organizations like the National Women’s Law Center make the more narrow scope of disagreement regarding the guidance clear, too.
In addition to being odd, it’s unfortunate, I think, that this is now being confused in discussion following the book (e.g., here). The controversy surrounding the 2011 DCL is a serious matter of public concern, and misrepresenting the subject of that controversy is unlikely to advance serious public discourse.