September 16, 2018

SIMPLE JUSTICE ON TITLE IX:

Ironically, the substance of Title IX, 20 U.S.C. § 1681(a), itself is short and to the point.

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.

Five words have created an industry and expectation that this sentence entitles co-eds to a sword wielded by their college to cut down anything and anyone whose actions, or inactions, fail to vindicate their every emotional hurt. And they have good reason to do so, as that’s how the Department of Education, Office of Civil Rights, interpreted those five words.

This was done by the very deliberate unilateral fiat of OCR bureaucrats during the Obama Administration, who pursued a series of lies (which became truths in the minds of the afflicted) and cures for those lies based upon a series of “Dear Colleague” letters and explanatory notes whose sole purpose was to compel and foregone conclusion that female students would have a means by which to vindicate their every emotional sexualized harm at the hands of male students.

If this characterization seems severe, it is. It’s meant to be. Catherine Lhamon has won. On the most superficial level, the new regs may have relieved colleges from Lhamon’s mandate, upon unlawful threat of withholding federal funds, that they provide a mechanism to vindicate every hurt feelings suffered by a college woman by making Lhamon’s demands permissive rather than mandatory, but they keep the existence of a mechanism intact, they permit colleges to continue to deprive male students of due process, both directly and by allowing means of circumvention of basic protections. And, truth be told, even if they required the provision of due process protections in every instance, would still fail to provide a mechanism that wouldn’t grossly favor the accusers.

But the details of adjudication notwithstanding, they keep colleges in the business of sex policing individual students’ grievances. This was the pseudo-Amazonian utopia Lhamnon, and her spiritual guide, Catherine McKinnon, whose career has been devoted to recreating the relative power structure between men and women.

End it, don’t mend it. But there’s only so much Betsy DeVos can do on her own.

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