How Not to Talk About Title IX; Or, How To Not Talk About Title IX

This is a guest post by Mr. S. Klein.

 

Willful blindness has always presented a key opportunity to interrogate the world of power and the shape it’s taking at a given time in history. The tagline to a recent story on the New Yorker’s website provides just such an opportunity. Jeannie Suk Gersen, in an article about a speech by Betsy DeVos on Title IX and campus sexual violence, informs us in the tagline that: “If these statements were made by a different official in a different Administration, they would seem rational, uncontroversial, and even banal.” I admit it didn’t even occur to me as I started to read the article that this line was something other than the setup for what seems the obvious next sentence: but this is not a different Administration; it’s the Trump Administration. That next sentence never arrived.
The statements made by DeVos—the ones that, per Gersen, have generated an overreaction from the left—concerned the need for a system that balances respect for due process with the need to punish wrongdoing. Indeed this would be banal coming from the previous administration; that’s because officials in that administration’s Department of Education were not, for example, “noncommittal” when it came to “the basic educational rights of L.G.B.T.Q. students and students with disabilities,” like DeVos is. This is not the first time Gersen manages to acknowledge a fact that is fatal to her argument while treating it as marginal. We are asked to see that “what has been portrayed as a rollback of Title IX is really an embrace of a framework of compatibility.” But she also mentions that the new head of the sub-department that will actually implement DeVos’s new rules, Education’s Office of Civil Rights, told the New York Times that “90 percent” of campus accusations are over drunk or breakup sex. Gersen wants us to believe that this is the statement of someone merely seeking “fairness,” justice, and the rejection of “an either/or mentality—one in which the education system is either ‘for’ or ‘against’ victims of sexual violence.” (We are meant to take from this that Obama officials did not reject the either/or mentality, opting instead for bias or prejudice or some such; I suppose those officials’ statements about balancing due process and justice for victims were just lies, but Betsy DeVos is someone we can trust).

What allows a person to know all of this, and more, but to fail so utterly in knowing any of it at the same time? As a tenured professor of law at Harvard, Gersen has access to a vast array of tools for avoiding the terrible, irreducibly complex and uncertain task of legal decision making, tools that have been developed over the past several centuries. Since the 1970s, after the demise of the last theory of justice and society that garnered general elite consensus in law, it has become a venerable tradition among non-leftist legal scholars to partake of many or all of the various avoidance techniques throughout history, without feeling the need to justify them or otherwise adopt their implications—really the a la carte school of negating existential dread.

When Gersen asks us to hear only the literal import of DeVos’s words, one hears echoes of Justice Scalia’s favorite phrase: “When interpreting statutes, courts must give to words their ordinary, plain meaning” (that is, “no need to worry about judicial law-making here! These are just the facts, ma’am, and law-making is totally not a necessary implication of what we do”). When she writes that the “idea that an adjudicatory process should be fair to both sides is about as basic as any facet of American law,” we readers are intended to believe that broad conceptual principles like “fairness” can lead, almost deductively, to adjudicatory processes that are somehow beyond political and value judgments.

(At a certain point, I thought that perhaps Title IX was a new area for Gersen, particularly when she asserted, in a law review article entitled “The Sex Bureaucracy,” that bureaucratic regulation of sexual behavior was something new (it isn’t) and when she suggested that there was something exceptional about an agency providing guidance about how it interprets broad statutory language so that regulated entities are on notice as to what the agency will expect. However, in a letter to the Department of Education written by Gersen and three other Harvard law professors and styled a plea for “Fairness for All Students under Title IX,” she describes herself as someone who has “researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform.”)

Gersen ends her article on the DeVos speech by asserting that what “promises to emerge from the new rulemaking process—which will generate mountains of public input—is more, rather than less, regulation and enforcement of schools’ obligations to all parties under Title IX.” This may very well take the cake on astonishing lines from the article, and it embodies the last flight from responsibility that held a truly dominant position in American legal academe. Nothing about increased input should suggest to anybody that the Trump administration is listening and will incorporate it. Further, that public input will come from many different perspectives and embody many different, frequently incompatible visions of how we can be together. Very hard choices will have to be made, and suggesting that more input and the right process will make an inherently political set of choices into something neutral, “principled,” or apolitical—so much so that we should trust Betsy DeVos and her head of OCR to do a bang-up job—is as jaw-droppingly naïve today as it was when it dominated the legal academy in the 1950s.

Gersen did not rest, though; she wrote two articles for the New Yorker on this issue.

Gersen’s second article partakes of one of the two favored avoidance techniques among those in the center-left: the discourse of rights. She sets up herself and scholars like her as defenders of the accused’s first amendment rights, which are being dangerously curtailed by a bureaucracy run amok. The thrust of the article comes across in its title and tagline quite directly: “Laura Kipnis’s Endless Trial by Title IX: Students and educators now live in a world where expressing an opinion about sexual harassment can be sincerely perceived as sexual harassment.”

The short version of Kipnis’s “Endless Trial” runs thus: (1) she published an article in the Chronicle of Higher Education, entitled “Sexual Paranoia Strikes Academe,” in which she suggested a student’s Title IX complaint was absurd and that students are the ones with all the power and professors are all merely potential victims. (2) The article’s publication lead to a Title IX complaint against Kipnis for retaliation against the complainant, hostile environment, and a chilling effect on the willingness of future victims to file complaints. (3) Kipnis wrote another article in the Chronicle, entitled “My Title IX Inquisition,” arguing that misuse of Title IX allowed “intellectual disagreement to be redefined as retaliation.” The same day as the second article’s publication, Kipnis was cleared of all wrongdoing (per the university, viewpoint expression cannot be retaliation and a reasonable person would not suffer from a hostile environment after the first article).
(4) Kipnis wrote a whole book about it, called “Unwanted Advances,” in which she pored over the thousands of documents provided to her by the Northwestern professor whose Title IX case started this whole saga and in which she declares herself on the side of “grown-up feminism.” Her conclusion? Again, the girl made it up; she really wanted it, then regretted it. (Of course she makes the obligatory nod to the belief that real harassers should be fired). (5) The student sued Kipnis and HarperCollins for defamation and invasion of privacy. (6) A new Title IX complaint was filed based on “Unwanted Advances.” Once again, no findings of wrongdoing; Kipnis’s avowed hope that the book would cause a “shit storm” was not enough even to justify a minor sanction for violating the university’s policy of “civility and mutual respect.”

There’s far more here than can be succinctly unpacked, but a few parts stick out as they relate to Gersen’s apologetics. Gersen provides us with a helpful quotation from, once again, Betsy DeVos: individuals “have faced investigation and punishment simply for speaking their minds or teaching their classes.” “If Kipnis did engage in retaliation or violate confidentiality,” Gersen writes, “those infractions would be impossible to untangle from her book’s performance of her protest.” Too often rights discourse becomes another way of saying “But what about the powerful? Who will protect them?” How can we hold Kipnis accountable for a mere “performance”?

Kipnis wanted to say these things, and she didn’t want to consider the consequences to anyone else in saying them; now the Man wants to come down and tell her no? (Well, actually the Man came down to meekly ask and then make several findings of categorically no wrongdoing). It would be petty tyranny to tell her no in any manner; what about her rights? And what would happen to the sanctity of debate—the great marketplace of ideas—if we were to tell her not to retaliate? Gersen writes that “debate on these topics is crucial to the pursuit of sex equality” and that “it will be important to be more explicit about how [DeVos’s new Education Department] may better protect the core educational activity of a campus: the production of knowledge and the expression of ideas.”

But what does it mean to be a producer of knowledge and expresser of ideas when you are a woman and any fellow student could be one who likes “to get girls drunk and fuck the shit out of them,” in the words of the aggressor whose case is famous in legal circles for the proposition that rape is really a local matter, a species of “family law” unfit for federal court, as Chief Justice Rehnquist held? Is that rapist and are those federal courts the ones women should expect to reasonably and rationally debate? What good does the marketplace of ideas do you when you know that attempts to hold professors accountable will lead to Laura Kipnis profiting off your plight and calling you a fool (literally replaying the conservative reaction to the very first case seeking liability for workplace sexual harassment)? When your university won’t give Kipnis even a slap on the wrist for so deeply repudiating the idea of mutual respect?

All of this conjures David Graeber’s description of the very real force that underlies the concept of “structural violence”: “If, say, there are certain spaces women are excluded from for fear of physical or sexual assault, one cannot make a distinction between that fear, the assumptions that motivate men to carry out such assaults or police to feel the victim ‘had it coming,’ or the resultant feeling on the part of most women that these are not the kind of spaces women really ought to be in. Nor can one distinguish these factors, in turn, from the ‘economic’ consequences of women who cannot be hired for certain jobs as a result. All of this constitutes a single structure of violence.”

It’s clear that Gersen and the many members of the academy and of society who agree with her do not want a debate on this subject; they want a “debate,” one in which the role of structures of violence—even when the topic literally is violence against women—is abstracted, marginalized, and irrelevant. Graeber, discussing ideas from feminist writers like Catia Confortini, emphasizes the importance of keeping an eye always on the physical, real violence that makes structural violence what it is. The structure is a set of “material processes, in which violence, and the threat of violence, play a crucial, constitutive, role. In fact one could argue it’s this very tendency towards abstraction that makes it possible for everyone involved to imagine that the violence upholding the system is somehow not responsible for its violent effects.”

For Kipnis, taking what I’m saying into account will merely undermine the development of critical thinking and resilience, producing a “pacified, cowering citizenry.” As Gersen tells us, “Title IX is too often conscripted to serve purposes antithetical to the education of citizens in a democracy, in which disagreement, dissent, or disapproval should lead to argument, not to an infinite loop of institutional investigation.” Somehow, whenever conservatives and centrists discuss these sorts of issues, their proposed solutions are reasonable only if you assume there is no power imbalance to begin with; but rectifying the power imbalance is the whole damn point.

All of this cannot help but smack of the American propensity for overnight backlash: whether it’s black civil rights in 1968 or women in the tech workforce in Silicon Valley or men being held to account for sexual violence on campus—somehow the moment anything gets a little better, a mass chorus of the elite arrive to say “Well, this has really gone far enough, don’t you think? Surely this is plenty? You don’t want to be ungrateful for all the nice things we’re allowing you to have, do you?”

In the end, mainstream rights discourse has always been grounded in a classical liberal vision of largely autonomous, equal subjects; thus, something like the history of sexual violence that many see as an essential aspect of the experience of gender or race are cast as irrelevant. In law and policy, all must be assumed to be the same. Therefore, women who perceive any of Kipnis’s activities might very well be “sincerely perceiv[ing]” them “as sexual harassment,” but, to quote the Supreme Court, these women are as the “colored race” who experienced segregation as a badge of slavery simply because they “chose to put that construction upon” it. Gersen quotes DeVos with approval on the fact that sometimes men are the accusers and women the accused; from this she implies that fewer Title IX cases means everyone wins because everybody is presumed to be equally affected by due process or free speech rights.

Throughout the article, Gersen identifies entirely with the experience of Kipnis, going so far as to confess confusion as to why the student targeted by Kipnis’s book would object in her lawsuit to being portrayed as a “serial Title IX filer.” After all, hadn’t the girl filed multiple Title IX complaints? What further meaning could such a characterization take on? (Again one hears the desperate need to pretend that (1) words have an ordinary, plain meaning that can be discovered without controversy and (2) nothing in the judicial tendency to strip words of nuance should be considered as requiring justification or further discussion). Moreover, Gersen had just sentences before been willing to contextualize Kipnis’s unwillingness to answer questions from opposing lawyers as “following the standard advice of counsel.” So one group gets the benefit of some nuance and context from Gersen, and one doesn’t.
Two further professors get similarly sympathetic treatment in which Gersen invites us again and again to think that they crossed no lines at all and so to agree that the entire Title IX apparatus has gone haywire. One professor who admitted to being “openly contemptuous” of his colleagues was investigated under Title IX for “being aggressive, rude, or dismissive of female faculty members” and “making unwelcome/unwanted sexual jokes or comments.” It should surprise no one that there was no finding of wrongdoing. But Gersen notes darkly that lack of civility, under a general university policy, can be a fallback accusation, implying that this is a false or otherwise illegitimate attack in order to stifle faculty dissent. Indeed, this first professor was reprimanded and suspended for profanity, a constant stream of insults, and a general practice of berating and belittling his colleagues. Is there anything troubling about that? Every day, thousands of professors manage not to do these things. Whole droves of professors teach thousands of students constitutional law—covering almost every controversial issue there is—year after year, yet almost all somehow manage not to unleash strings of insults, demean entire groups of people, or lash out at people who pursue complaints for sexual harassment.
The only possibly probative case Gersen gives us involves a professor who criticized aspects of the financial condition of the school he taught at, leading to a Title IX investigation that had no complainant. If Gersen’s point in her articles had been that some schools use various processes to stifle teachers who are asking too many questions, I certainly wouldn’t object. But I don’t think Gersen would ever write such an article because it wouldn’t allow her to lament the erosion of the “core educational activity of a campus” under over-reaching Obama bureaucrats who just want to regulate us to death with a “Sex Bureaucracy.” She can see only the poor teachers who are “refraining from teaching and writing” on certain topics for fear of a liberal PC gestapo, their first amendment rights under siege, the students who are deprived of learning “resilience” and debate, and the accused who lack due process entirely.

Gersen’s utter unwillingness to engage with any of the hard questions at the heart of Title IX policy tells us everything we need to know about the persuasiveness of her work in this area. Here are just a handful of such questions: Does Gersen think that Kipnis did nothing wrong? Why? Does Gersen think that a “reasonable person” would not be deterred from filing a complaint against a Northwestern professor after Kipnis’s two articles and a book stemming from just one such incident? Is there something preferable about the old Title IX regime, in which, between 1998 and 2008, the Office of Civil Rights resolved only twenty-four investigations, with findings of violations in just five and zero instances of punishment even when investigators concluded that campus officials retaliated against students who reported assault? If all the legal scholars who think like this had to abandon the false image of a bureaucracy “intervening” to paternalistically protect the “weak” party and instead faced the fact that every decision (including not deciding) will affect the balance of power in a world where there is no natural distribution of power to be deduced or defended—if all of these scholars hadn’t been expensively trained in how not to think, what would they do and why?
Nothing about the terror of being forced to decide justifies a policy of leaning heavily in favor of the status quo power dynamic. Suggesting a policy of “non-intervention” (hint: every decision is an intervention) draws on the grandfather of all avoidance techniques, the act/omission fallacy, which the legal academy had managed mostly to jettison until about the time of the rise of the New Right. We need to move into what feminist legal scholar Frances Olsen calls “the risky territory of real concerns that are political rather than neutral or impartial.” If we want to get “beyond liberal-legalism, we should stop trying to fit our goals into abstract rights arguments and instead call for what we really want. The conditions that make ‘rights’ seem necessary must be changed, and these conditions cannot be changed as long as women are oppressed.”

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