Dereliction, Due Process, and Decorum: The Crises of Title IX
Catharine R. Stimpson

This essay is in the series Feminist Frictions: Key Concepts and Controversies, which is part of the Feminist Public Intellectuals Project. It is accompanied by a digital archive.

© 2021 by The University of Chicago. All rights reserved.

The language of Title IX may seem simple: “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 educational program or activity receiving Federal financial assistance.” This simplicity is as deceptive as that of the language of a civil marriage ceremony or a tombstone.  For Title IX is the site of one of the most consequential fights about sex, gender, and sexualities in the United States.  The focus is education, but as education goes, so goes much of the nation.[1]  My nation is  the United States, but feminist struggles against discrimination—and the struggles within feminism about them—may resonate beyond these borders.

I have been a participant/observer of Title IX and these fights since they began in 1972. For the most part, I have seen Title IX serve equality.  I have also seen maladroit and unjust administrative practices that avoid the rigors of due process for both men and women and that call out for reform.  Force-feeding my unhappiness was the presidential election of 2016. Wrapping itself  in a star-spangled cloak of reform, the Trump administration  pushed Title IX into yet another round of ideological and political struggle.  Then, in November 2020, a majority of American voters chose Joseph R. Biden over Donald Trump as president in a free and fair election. Now, in 2021, the Biden presidency promises to undo Trump’s handcuffs on equity and inclusion.

As a participant/observer, I am offering a narrative about the evolution of Title IX from 1972 to early 2021. I have three lessons. First—and who can disagree?—sex discrimination is one of the brute enforcers of patriarchal gender systems.  Its  presence marks a moral, political, legal, and psychological dereliction from the ideals of justice.  Feminists were greatly responsible for Title IX.  Its purpose was to remedy this dereliction though federal legislation and executive policy. Inevitably, the courts, as arbiters of law, became involved.

Second, as Title IX evolved, a feminist consensus about it cracked in several places. Two linked issues exerted the most pressure: freedom of speech and due process in disciplinary and legal proceedings.   The meanings of sexual consent were also to become fractious.  Since disagreements can prevent monolithic thinking, and catalyze new thinking,  they are necessary.

Third,  I have learned, grimly and sadly,  that legal remedies for sex discrimination are necessary but not sufficient. As a result, intentional everyday ethical practices must undergird and supplement them.    As grammar is to living speech, the law is to ethical practices. The former provides structure; the latter  a spectrum of  activities—from compliance with the law, to its modification, to indifference, or, finally, to its overthrow.  A caption for these tensions is relations between rules and networks of  norms that are often at odds with each other.

Legal remedies for sex discrimination are necessary but not sufficient. As a result, intentional everyday ethical practices must undergird and supplement them. Click To Tweet

In a coda, I will outline a feminist-infused everyday ethical practice that could undergird and supplement the overarching legal requirements of Title IX.  I call it the “New Decorum.” I predict that this name itself will provoke friction.  Perhaps every essay should. Perhaps, too, every essay also has a shadow lying behind it. If brought into the light, it would reshape the text that has been written.  To my rue, this essay is too brief to summon forth a shadow that lurks behind it:  the operations of the so-called feminist sex wars. On

Read the Signs special issue “Pleasure and Danger: Sexual Freedom and Feminism in the Twenty-First Century.”

April 24, 1982, ten years after the passage of Title IX, I exited the subway at 116^th Street and Broadway in New York City to attend the fury-ridden Scholar and Feminist Conference at Barnard College, a point of origin of these sex wars.  Pleasure and Danger: Exploring Female Sexuality (Vance 1984) is the conference’s published proceedings.[2] My shadow question about Title IX is this: in what measure does it enable pleasures or dangers or both?

The beginnings of Title IX: The documentation of dereliction

Formally, Title IX is Title IX of the Educational Amendments of 1972.  President Richard M. Nixon signed it into law on June 23, 1972.  The language prohibits sex discrimination in educational programs or activities that get federal money, with some exceptions. Among them are single-sex or religious institutions.

Preceding Title IX were centuries of arduous, often bloodstained efforts for racial and gender equity, which had some notable successes in the eleven years that preceded the passage of Title IX. These were the 1960s, that decade of push and pushback,  creativity and death, of the gutsy quest for justice and gory assassinations of the questors.   On December 14, 1961, President John F. Kennedy, by executive order, established a President’s Commission on the Status of Women.  Its historic 1963 report, made respectable by its presidential origin and “blue-ribbon” membership, including Pauli Murray and Eleanor Roosevelt as chair, documented pervasive discrimination against women.

Then, on July 2, 1964, President Lyndon B. Johnson signed the Civil Rights Act into law. It included two relevant sections.  Stay with me. One was Title VI, which would prohibit discrimination against people receiving federal assistance on the basis of race, color, and national origin.  The second was the even more spacious Title VII. It would prohibit employment discrimination in public and private institutions on the basis of race, color, religion, sex, or national origin.  

A lacuna in these titles left another labor to be undertaken. Title VII did not include educational institutions. Historically, with some notable exceptions—such as the founding of military academies and the land-grant universities—the United States federal government was wary of and chary about interfering with education.  That was a local or state or private prerogative.

Before he left office in early 1969, President Johnson had also signed two other executive orders. Again, stay with me. Executive orders will matter in the Title IX narrative. One Johnsonian order, in 1965, was Executive Order 11246. It required nondiscrimination in employment decisions by federal contractors. A second, in 1967, was the compatible Executive Order 11375, again addressed to federal contractors. They could not discriminate on the basis of  sex in hiring and employment.  The orders also demanded “affirmative action,” an older term that was not yet  an aspiration or a curse  in educational discourse.  Employers were to make sure all applicants had a chance at being hired, and, if hired, to be treated fairly—without regard for race, color, religion, sex, or national origin.

The leap between Johnson’s signature on his executive orders and Nixon’s signature on Title IX demanded the political and social energies of second-wave feminism.  “Leap” is a bad metaphor, because it renders social change too balletic.  “Slog” is more accurate. Major pieces of legislation or judicial decisions do not appear like Mary Poppins descending with her umbrella.  A crucial slogger, and feminism has its tremendous sloggers, was an indomitable, cheerful woman who died in 2019, Bernice R. Sandler.  Her nickname was “Bunny,” sweetly inappropriate for the adult woman.[3]

Sandler was working with one of the new feminist nonprofit organizations,  the Women’s Equity Action League, or WEAL.[4]  She began to ask, sensibly,  if the civil rights movement could provide models of action for feminism.  Doing her research, she found President Johnson’s executive orders and the word “sex” included in those orders, a eureka moment.

On January 31, 1970, WEAL ambitiously filed a class-action complaint against all universities and colleges in the country and specifically against the University of  Maryland.  The complaint accused higher education of an industry-wide pattern of discrimination.  Sandler then set up an advocacy campaign. Heroic congresswomen spoke, held hearings  on sex discrimination, and called for remedial legislation.  Male allies joined the fray.[5]  After negotiations between the two parts of the United States Congress, the House and the Senate, Title IX, a new part of the Education Acts, emerged, applying to many areas in education, such as admissions.

The implementation of Title IX

Arguably, many observers of the creation had little or no idea of how important Title IX might  become or how it might evolve.  Evolve it did.  The  post-1972 Title IX narrative is about changes, supported by some, detracted by others.  The banality of this truth does not diminish its truthfulness.  The printed language of Title IX has been stable.  However,  the various readings of that language, and the decisions that flow from them, have enabled the instabilities of change.  Decisions have not built on each other sweetly and neatly but have jarred and warred with each other—as contemporary beliefs about gender have done.  

The printed language of Title IX has been stable. However, the various readings of that language, and the decisions that flow from them, have enabled the instabilities of change.Click To Tweet

Among the most important of these conflicting decisions have been those emanating from administrators of the law, regulators in federal agencies who can wield immense power if they choose. New administrations, seeding a new crop of regulators, can undo what their predecessors have done—through acts of commission, omission, or indifference to existing regulations.

The first group of federal administrators had to deal with the vexed issue of equity in athletics. Here inequities and an ardent devotion to the status quo were equally obvious.  Perhaps for these reasons,  Title IX immediately become associated with sports.  Indeed, ‘Title IX’ is “practically synonymous with women’s athletics” (Ware 2007, vii). Significantly, the “Battle of the Sexes,” that ballyhooed tennis match between feminist heroine Billie Jean King and  hustler Bobby Riggs, took place in 1973, a year after the passage of Title IX. Demonstrating a woman’s grit and athletic prowess, King won.  

In the United States and elsewhere, sports matter—economically and culturally.  Every beleaguered tomboy can attest to the powerful intertwining of gender—its structures and codes—with athletics. Despite the presence of  some pioneering women, like King, Big Sports  (both professional and collegiate) was a macho-industrial complex. Before Title IX, the preference for men and boys in sports was glaringly obvious. Fewer than 295,000 girls participated in high school athletics in 1971; fewer than 30,000 in intercollegiate athletics (Ware 2007, 1).   During the 1970s, and after, the administrative regulators of Title IX, under congressional oversight, strolled cautiously toward equity in sports.  For example, certain sports might be sex segregated—as long as a school provided comparable facilities for the teams.

Even as a series of  regulations governing sports equity took hold,  arguments about it persisted.  One masculinized whine was a misleading accusation that equity was a zero-sum game. If there was to be more money for women, there would be less money for men, especially in the “minor sports.”  Another argument was that the increase in women’s sports seemed to sideline some of the fun in previous games. Instead, women’s sports was becoming imitative of the cutthroat competition of big male sports—on arena floor and outdoor field.    Finally, and significantly,  the benefits of Title IX seemed to be distributed  inequitably, giving more to white women than to minority women and to white students “with a privileged background” (Stevenson 2007, 486). [6] Too many institutions spent their funds on “white-girl sports”—golf, soccer, lacrosse—easier to learn and to play in salubrious suburban fields.

Nevertheless,  Title IX was “arguably the largest change to mass participation in sports history” (Stevenson 2007, 503). Law did alter behavior. A diverse women’s athletics began to flourish. In 2001, nearly twenty years into Life with Title IX,  2.8 million girls participated in high school sports, 41.5 percent of all varsity athletes (Ware 2007, 1).  The support for women’s basketball in high school and college was essential for the 1996 founding of a professional league, the Women’s National Basketball Association (WBNA), in which Black women have played and starred. Professional women athletes have been resolute activists. Women soccer players have called for greater financial equity with male players; the WBNA for racial justice.

The initial dominance of sports in Title IX implementation and discourse is arguably a marker of the dominance of sports in American culture. Less noted then, but still notable, three activities were taking place away from locker rooms and ball courts.  One was the growth of an infrastructure that nurtured the place of Title IX in education. For example, offices to administer Title IX grew within institutions—the coordinators, compliance officers, lawyers, diversity deans and vice presidents, and human resource personnel. Indeed, so numerous were participants in this infrastructure that in 2011 they formed an Association of Title IX Administrators, whose core work is “Bringing Title IX Administrators together to advance gender equity.”[7] 

Next, a historic intellectual and academic  infrastructure that began in the 1960s grew vibrantly.  It generates and teaches our new ideas, theories, and empirical studies about race, gender, sex and sexualities.  The  builders of this infrastructure have learned to take intersectionality seriously as a legal, political, cultural, intellectual, and psychological project.  As a white woman, I am both white and a woman.  I must persistently  anatomize how my whiteness has blinded me to, “whited-out,” the realities of race and my position in political, social, and professional hierarchies.

The third activity roiled legal activities: formal jurisprudence, legislation, and regulatory measures. Drawing on the new intellectual and academic infrastructure,  people were devising both boundary-pushing interpretations of the law and the nitty-gritty ways of daily compliance with  it.  One of them was the  struggle against sexual harassment  that was to supplement the struggle  for equity in sports. Courts had to decide what we, feminists and nonfeminists alike, now take for granted: sexual harassment was a form of sex discrimination that federal law prohibited.

The term “sexual harassment” was used, quite probably for the first time, at a major women’s gathering at Cornell in 1975. After this  event, a driving legal force was Catharine A. MacKinnon. To oversimplify this subtle, original, and powerful thinker, MacKinnon argued that women are harassed because women are a sex.  Men harass women because men are a sex to whom society gives the power to dominate women and discriminate against them.  This should be illegal.  In 1979, she was to publish Sexual Harassment of Working Women, but from 1977 to 1986, she was vital in the legal  case of Mechelle Vinson, an African American bank employee who fought against her supervisor’s sexual harassment and assault.  In 1986, the Supreme Court  unanimously held that federal law, specifically Title VII,  prohibited sexual harassment as a form of sexual discrimination. [8]

Again, stay with me. As Title VII  jurisprudence went, so would that about Title IX, its younger sibling. In 1977, another federal circuit court of appeals heard a case, Alexander v. Yale, which claimed that sexual harassment was a violation of Title IX.[9]  Ronni Alexander was one of five Yale undergraduates suing their university. Among their lawyers was MacKinnon, then a young professor. The plaintiffs lost their case on a technicality, but they won a major principle: sexual harassment was a form of sex discrimination in education and, thus, prohibited under Title IX

Reading the background of cases brought under both Title VII and Title IX, and remembering those years, I remain appalled at how derelict institutions of higher education, and much of their faculty and staff, were; how exploitative, selfish, self-regarding, creepy, and often slimy;  how thick-headed about equality.  Too many men beribboned  an exercise of power in Valentine’s Day diction.

I remain appalled at how derelict institutions of higher education, and much of their faculty and staff, were; how exploitative, selfish, self-regarding, creepy, and often slimy; how thick-headed about equality.Click To Tweet

Then, in  1979, the Supreme Court issued a crucial ruling about Title IX in  Cannon v. University of Chicago.[10] Geraldine Cannon, an “older woman,” all of 39 years of age,  wanted to enter medical school at Chicago and sued to be able to do so. The Court decided that individuals can hold schools “liable for discrimination under Title IX.” Thus, a woman could sue the university that denied her admission to medical school. 

In 1980, with President Jimmy Carter in office, the Equal Employment Opportunity Commission issued another set of guidelines concerning sexual harassment under Title VII.  It consisted of two elements. One was “the demand for sex in exchange for favorable treatment (the quid pro quo demand)”; the second was “the creation of an environment ‘so infused with hostility’ that it unreasonably interfered with an individual’s ability to work” (AAUP 2016, 73-74)  A  harasser’s actions could be verbal or physical or both. 

Again, as Title VII went, so went Title IX, but far more slowly. In 1981, the Office of Civil Rights (OCR) within the Department of Education, now the federal agency that was to enforce Title IX, issued similar guidelines—but without the same attention to a hostile environment. Focusing that attention would demand about two decades of feminist work and a growing awareness in the court of public opinion that harassment was neither a joke nor a staple in  the landscape of life. Events in 1991 helped to shape the court of public opinion.  Both the Tailhook scandal in the military and hearings in the United States Senate  about Clarence Thomas’s nomination to the Supreme Court, where Anita Hill bravely testified about Thomas’s maltreatment of her, vividly dramatized the scope and harms of harassment (AAUP 2016, 74-75).

As I write, I fear that my narrative about the legal defeat of discrimination is too triumphalist: one victory follows another, like the beats of a bass drum in a parade. On the contrary, these victories were hard-won by many people who expended money, sweat, toil, and skills in protest, research, organization, negotiation, and litigation.  I often linger on the names of the plaintiffs in both Title VII and Title IX cases.  They are individuals who resist dereliction: the intrepid parents who want to stop the suffering of their children in school; students and faculty members who want to stop their own suffering. Behind them are their supporters. Psychologically, no matter how strong these legal warriors might be, they have to be prepared to lose and still go forward.  They must have courage. They have to be athletes of justice.

These victories were hard-won by many people who expended money, sweat, toil, and skills in protest, research, organization, negotiation, and litigation.Click To Tweet

Listen with me, with appropriate suspicion about the metaphor, to some percussive legal drumbeats. In 1992, the Supreme Court issued a hugely significant ruling in Franklin v. Gwinnett School District.[11] It was the first Supreme Court case about sexual harassment as a form of sex discrimination under Title IX.  Christine Franklin was a  high school sophomore in Georgia who claimed that her male coach and teacher had sexually harassed her—verbally, physically, and in coerced intercourse at school.  The Court, unanimously, said that Franklin had the right to bring a civil suit against the Gwinnett School District as an individual and, moreover, had the right to sue for monetary damages. Notably, the suit was not against an individual man but against a school district, a system. The barrel, as well as the rotten apple, was suspect. However, the Court found the school to be liable only for “incidents of overt and known sexual harassment” (Busch and Thro 2018, 50). The school was not liable for events of which it was ignorant. The custodians of the barrel were not responsible for all the apples it contained.

In this legal climate, in 1991, a group of feminist women activists began a campaign at Antioch College, a historic member of the more radical and progressive wing in American higher education.  As academic citizens, they articulated a way of ridding a campus of the scourge of sexual harassment. the Antioch affirmative consent policy for sexual encounters. Both parties now must agree to each ongoing step of a sexual interaction.  Moreover, all members of the campus community are guardians of this framework of community well-being.   The college’s website (as of August 28, 2020) states that students, faculty, staff, and visitors are to “report any violations of local, state, and federal law or conduct deemed inappropriate under this policy.”

---

For more context, visit the digital archive on Title IX.

---

Antioch  has had to endure widespread mockery for its feminist ambition and daring.  Even today, I hear grown people referring (incorrectly, of course) to that school in the Midwest where you have to ask permission to kiss someone. More substantively, the policy provokes the active issue—about which feminists disagree—about what sexual consent means.  In a formidable article, Jacob E. Gersen and Jeannie Suk ask if “nonconsent” has not become “the line separating legal and illegal sexual conduct” (2016, 889).  If so, and if consent signifies legality, what is consent in “ordinary sex”? Gersen and Suk define ordinary sex as “voluntary adult sexual conduct that does not harm others” (885).[12]   Is consent an explicit “affirmative consent” or a “lack of objection” (889)?  For many feminists, what is called consent can actually be a resigned submission to the requests/demands of a more powerful person.  In sharp contrast, even if sexual partners are equal, even the mildest bouts of  “ordinary sex”—for better or worse—can be routes to teasing and games and play that blur the binary of consent/nonconsent.  Before such intimacies, laws and norms must falter. 

In 1997, the OCR in the Department of Education showed  how a relevant government agency might expand its administration of sexual misbehavior.  It  issued “Sexual Harassment Guidelines,” pronouncing that Title IX also protects against forms of gender-based harassment in education. At long last, the guidelines underscored those two forms of harassment: “quid pro quo,” and “hostile environment” (Busch and Thro 2018, 57-59). The test of a hostile or abusive environment is whether a student is kept from participating in or benefiting from an educational program or activity. 

Within the next two years, the Supreme Court handed down (that common, instructively patronizing verb phrase) two significant rulings.  Both were 5-4 decisions, more examples of how narrow the opening can be for justice to enter. Yet, a decision is a decision. Both were later to become the legal and policy touchstones for the Trump administration’s revisions of Title IX. The first, Gebser v. Lago Vista Independent School District,  focused on employee (faculty)-student relations.[13]  Alida Star Gebser, a high school student, had had a relationship with a teacher.  The Court decided that the school had to pay damages if an official in the school knew what was going on and if, with such knowledge, the school “deliberately” failed to respond.

The second case, Davis v. Monroe County Board of Education, took up student-student relations.[14] LaShonda Davis was an African American fifth grader at Hubbard Elementary School in Georgia, whose mother filed the case on her behalf.   The child had been sexually harassed by a classmate, verbally and physically.  She had reported each incident to a teacher and to her mother. Because of these reports, the school was found to be indifferent to what it knew. So derelict, it was liable for the behavior of nonemployees and nonagents of the school—in this case, another student.  In still another advance of Title IX jurisprudence, the Court did not limit its ruling to male-on-female sexual harassment.  As a result, Adele P. Kimmel writes, it “opened the door for LGBT students to file Title IX suits when schools fail to respond adequately to peer harassment based on gender stereotypes or perceived LGBT status” (2016, 2014).

Davis extended the 1997 OCR guidelines. However, the ruling did not prove to be a wholly helpful  blessing for complainants.  Worried about frivolous lawsuits, Justice Sandra Day O’Connor  decided that harassment has to be so “severe, pervasive, and objectively offensive that it [might] inhibit the recipient’s ability to participate in school programs and activities” (Busch and Thro 2018, 55).  An important quarrel would follow about that conjunction “and.”  Must harassment meet all three criteria of being “severe, pervasive, and objectively offensive,” or could harassment meet one criterion? Could it  be “severe, pervasive, or objectively offensive”? What a difference a conjunction makes.

Now, join me in the narrative of Title IX in the twenty-first century. In part, it extends the story of the expansion of the powers and meanings of the law through both public and private, official and civic, deeds. The presidency of  Bill Clinton enlarged the number of groups eligible for its legal protection.   In 2000, Clinton signed another one of those executive orders, here 13160, prohibiting discrimination on the “basis of race, sex, color, national origin, disability, religion, age, sexual orientation, and status as a parent in federally conducted educational and training programs” (United States Department of Justice 2012, 5).   

In 2006, the activist Tarana Burke, under the rubric of “#MeToo,” sought to empower women of color to speak out against sexual assault and to seek mutually supportive action. Compatible with her work, a national revulsion against bullying, especially of children, intensified, which the Obama administration was later to encourage.  In 2010, the OCR issued guidelines to schools, school districts, and states about their obligation to prevent any bullying that violated the federal antidiscrimination statues of Title IX.  “In 2000, only three states had antibullying laws and school district anti-bullying statutes, and only one explicitly covered anti-LGBT harassment…. By the end of 2014, forty-nine states had passed antibullying statutes, eighteen of which expressly protect LGBT students” (Kimmel 2016, 2011, fn. 25).

Possibly, the most dramatic official response to dereliction came in April 2011 during the Obama presidency. The OCR in the Department of Education released a “Dear Colleague Letter” (DCL), a genre that announces policies, guidelines, and regulations with that “We are all in this together” salutation. Although it carefully established a legal and administrative lineage, the DCL was nothing less than a new paradigm.   In April, 2014, OCR would supplement this document with fifty-three pages of instructions about implementation: “Questions and Answers on Title IX and Sexual Violence.”[15] 

---

Read the Dear Colleague Letter and other primary documents in our Title IX digital archive.

---

Like many New Paradigms, be they about concepts or social behavior, this was responding to very real problems and discontent. Survivors of sexual assault and violence felt a lack of support from slow, clumsy, often indifferent or self-serving institutions. If survivors went to the federal OCR, they had to wait for a long time for redress (Peterson and Ortiz 2016).  If they went through the criminal justice system, the process could be painful and more often than not ineffectual.

The  DCL is brisk, firm, and detailed. It begins with a commonplace about education: “Education has long been recognized as the great equalizer in America.”  To continue this heritage, all students must have an educational environment free from hobbling discrimination. Discrimination includes sexual harassment. Sexual harassment includes sexual violence. Be assured, the document begins, “sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” (1).

The DCL then moves to an influential picture of a nation in a state of crisis about sexual violence.  One in five women in college is the victim of “completed or attempted sexual assault.”  In such a rape culture, in perhaps 90 percent of the cases of completed or attempted rapes, the victim knows the assailant (Edwards 2015, 123-24)  Because a rape culture, at long last, is now intolerable, the DCL declares that the Department of Education will end this dereliction.  The agency is “committed to ensuring that all students feel safe” and “have the opportunity to benefit fully from the school’s programs and activities.”  

To enforce this commitment to safety,  the department will hold the first responders, the schools, responsible for protection. This includes individuals, schools, and a system as a whole. Protection must be wide, deep, systemic, and visible.  Inseparable from protection is prevention. Keeping a bad thing from happening in the first place is an obvious way of protecting people from it.   Everyone must then be alert to the possibility of harassment and violence—on the part of others and one’s self.

So aware, everyone must seek to keep that possibility from becoming an actuality.  To increase awareness, an institution must install an education program for employees and students.  So, like many others, I take mandatory online campus-wide trainings about sexual harassment at New York University. On August 26, 2019, as a faculty member, I got an email from NYUiLearn, confirming that I had “completed” the annual online course “OEO 150: NYU Sexual Harassment Prevention Training (2019).”

If bad things nevertheless happen,  schools and systems are to set up a parallel system of justice that can name the guilty and exact penalties for dereliction.  Title IX coordinators are to be a central office on campus. Historically, universities, since their medieval founding, had fought church and state for their own disciplinary systems that were independent from church and state.  Now, ironically, the state was insisting that institutions of higher education have a disciplinary system.

Let me offer more details about this system of justice in a rape culture—for later the Trump administration would alter some of them. After a complaint, inquiries must be “prompt, thorough, and impartial.”  Women’s voices must be heard fully. The school must decide whether to notify law enforcement about some actions.   The school must protect students who complain from retaliation. The school must decide if confidentiality can be respected if keeping confidentiality harms other students. There is to be a single investigator model, although hearings may have panels. If there is a hearing, parties can neither question nor cross-examine each other during it. Indeed, they are not to be in the same room together. This may be “traumatic or intimidating” for alleged victims. In determining guilt, the “use of alcohol or drugs never makes the victim at fault for sexual violence”  (15).  In making decisions about guilt, the “preponderance of evidence” standard will do,  the least demanding of the three standards of evidence of the American justice system: preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt.

The OCR also established a system of investigations of campuses that were receiving federal funds to see if they were in compliance with the letter and spirit of the New Paradigm. To its credit, it did not spare the most prestigious of colleges and universities.  It would first seek “voluntary compliance,” but if institutions did not come into compliance voluntarily, OCR would deploy its weapons: the withdrawal of federal money or the referral of cases to the Department of Justice for litigation.

The New Paradigm and its implementation had an effect. By 2014, complaints about academic discrimination, athletic discrimination, and sexual harassment were about equal—at least in four-year, nonprofit, degree-granting schools.[16]

Reactions against the New Paradigm

If the New Paradigm had been a feeble thing, it would not have provoked reactions. In general, the mainstream media  did not seem  not hugely critical of the New Paradigm.[17]  However, the coverage of certain cases continued the sorry history of generating suspicions about women’s claims of harassment and sexual violence and, by extension, suspicions about putatively politically correct efforts to support a woman’s claims.  The media—for example, Rolling Stone in 2014—could peddle as true sensational stories about rape, violence, and harassment that were ultimately exposed as false.[18] Certainly, false accusations are illegal, immoral, and dangerous. Both the Code of Hammurabi and the Ten Commandments forbid them. Unfortunately, the narrative of false accusations blurs, when it does not erase, that far bigger narrative: most of the accusers tell the truth—when they feel they can speak at all.[19]

Yet,  even some supporters  of Title IX thought some reforms in its implementation were in order.  For example, did investigators have proper legal training? Moreover, the critiques of  Title IX were to become entwined with the arguments about free speech on American campuses.  Crucially, a 2013 ruling about Title IX from the Departments of Education and Justice had expanded the definition of  harassment to include “unwelcome” verbal conduct.  What is unwelcome is what I feel and say it to be. My subjective perceptions and feelings are sufficient proof of my having been harmed.  Some of the most egregious lapses from due process I have seen in the administration of Title IX have occurred when one person’s claims of psychological pain and victimization—because of speech—have been enough to condemn a reasonable speaker.

One source of skepticism over the enforcement of the New Paradigm came from law professors at more liberal universities.  The OCR investigated Harvard.  Harvard was found in violation.  It reached a settlement, and in July 2014, announced a new university-wide policy about Title IX.  In response, twenty-eight members of the Harvard Law faculty issued a controversial statement deploring the policy. All deplored sexual harassment and violence but asserted that the new Harvard procedures were unfair, lacked due process, and tilted in favor of the complainant.  This was and is a fracture in a feminist consensus about Title IX.[20]

More specifically, the professors critiqued an “absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing” (Boston Globe 2014).  Poorer students, who might not be able to afford representation, might be in special legal jeopardy. Moreover, one office, the Title IX compliance office, investigates, prosecutes, fact-finds, and does appellate review.  How can such an office be impartial?  In effect, if inadvertently, the critique was creating the potential of a second class of victims: those accused of sexual harassment. To add dereliction to dereliction, Harvard had “simply deferred” to the demands of federal administrative offices and had failed to call on a broad base of faculty to help design procedures against real stain  on and pain for the harassed. This neglect of faculty was compatible with another possible indifference to the faculty right to academic freedom.

Let me mention one of the notable signers of the Harvard protest: Janet Halley.  I read her literary scholarship before any of her other work. In 2015, she published the bracing, pungent “Trading the Megaphone for the Gavel in Title IX Enforcement.” Drawing from her experience, she offers scenarios of the hard cases that people might bring under Title IX, many of them the result of a campus culture that enables drinking and sex. This combination muddles questions of consent and guilt in a bad sexual experience.  Feminists, Halley further argues, have spoken as victims and survivors. Now, however, “It is time to govern.”  Governing means finding that some situations do lack a perpetrator of an alleged assault against a woman.

Halley offers two other cautions.  One is about administrators who, despite the muddles of hard cases, believe they must  always assign blame in a complaint.  The second caution has far deeper historical roots. Like Jeannie Suk (now Jeannie Suk Gersen), another signer of the Harvard Law statement, Halley fears racial biases in complaints against Black men, casting them as predators, a long and sullied part of American history. Unfortunately, Halley neglects the hideous truth that African American women have also suffered from sexual predators—the prejudices, harassments, assaults, and rapes African American women have endured are another long and sullied part of American history. In response, African American women have been leaders in the struggles against sexual assault and violence.[21]

Then, in the same year, the Atlantic  published a partially overlapping article, “The Coddling of the American Mind,”  a provocative echo of  the classicist Allan Bloom and his unexpectedly popular The Closing of the American Mind in 1987. The article was to become a book, and the authors, Greg Lukianoff and Jonathan Haidt (2015, 2018),  anatomists of an American campus hag-ridden by orthodoxy.  They also seem like prophets of the outcries against a “cancel culture.”   Like Bloom, the men argue that the American campus is becoming dangerously afraid of the exchange of ideas and, as a result, is psychologically damaging  for students. Closed minds breed stunted psyches, which demand further pampering.   Moreover, faculty and staff, as well as students, are subject to the strictures of Title IX, which enable the voicing of  students’ perhaps overwrought delicacies and sensitivities.  In this dramatization of the American campus,  microaggressions against students of color, and their courageous responses to them, are but bit linguistic players.

2016 as the pivotal year  

Despite the visibility of these critiques,  2016 was a pivotal year in the narrative of Title IX, with  events that cut against and contradicted each other. Significantly, and fortunately, the early focus on Title IX in sports and the later focus on sexual harassment cohered.  This proved that Title IX could be an instrument of justice. One of the most disgusting, egregious derelictions in sports was, and is,  the abuse, sexual harassment, and sexual assault of young athletes,  both female and male.[22]  Among the worse abusers were team doctors, who often had jobs at leading educational institutions and sports authorities.  Holding sway, they had intimate access to athletes and their bodies.

Among the most notorious of the derelict abusers was Dr. Larry Nassar, once at Michigan State University, who had hundreds of victims, women gymnasts, in training since they were children.  In 2016,  Rachael Joy Denhollander brought suit against Nassar under Title IX at Michigan State and went public about her abuse. Eventually, after the reports of Nassar’s abuse entered the criminal justice system, Michigan State settled with the victims for $500 million.[23]  Their collective voices about Nassar are part of the same historical moment as the testifying and witnessing Black Lives Matter, #SayHerName, and #MeToo movements. In 2019, Michigan State paid an additional $4.5 million fine to the Department of Education. 

On the other hand, Title IX received even more skeptical scrutiny and critique during this period.  Among the most searing was a deeply researched article by Catharine MacKinnon (2016).  She documents the shocking failure of educational institutions to respond to reports of sexual harassment, abuse, and assault. One cause of failure, she asserts, is  the weakness of the legal standard of “deliberate indifference” that institutions must show before they can be found to be liable. Better is the “due diligence” standard of international human rights law. 

Far less radical, but tough enough and persuasive enough to me, was the American Association of University Professors (AAUP) report, “The History, Uses, and Abuses of Title IX.” It deplores sexual harassment.[24] Who does not? Indeed, a feature of public discourse about harassment is that even harassers now tsk-tsk about it, especially if it touches their wives and daughters. Then, persuasively, building on previous AAUP reports, the 2016 version claims that the expanded implementation of Title IX has bred five dangers:

1. The interpretation of Title IX has shown increasing concern with a hostile environment.  This has begun to undermine both academic freedom and adequate protection for “due-process rights and academic governance” (AAUP 2016, 75).
2. While the focus on sexual harassment and sexual assault is invaluable, it is leading to neglect of other forms of sexual discrimination—in employment, for example, or in access to academic goods and benefits. This point is crucial.
3. The administration of  Title IX can be remiss.  There are documented cases of injustice and “overzealous administrators” (84).  Teaching, research, and extramural speech are all affected. Faculty are absent in administering Title IX. Ironically, and here the AAUP report is astute, administrative activity is burgeoning while schools are cutting academic programs that teach about gender, sexuality, and race.
4. Inadvertently overlapping with the “coddling” accusations about campus climate, the AAUP report asserts that claims about a hostile environment are insufficiently based on what a “reasonable person” might find offensive and overly based on the complainant’s “subjective factors”   (76).  After the Dear Colleague Letter of 2011, Title IX enforcement is far less attentive to protecting academic freedom and free speech rights. This has certainly been my experience in some cases.
5. Sadly, not all complainants are citadels of wisdom, historical consciousness, and virtue. Sexual harassment is a grave problem, but one cannot immediately grant credibility to an accuser. The report calls on Jeannie Suk (now Gersen) to remind us about the historical bias against some of the accused, especially if they are Black.  “‘It is as important and logically necessary to acknowledge the possibility of wrongful accusations as it is to recognize that most rape claims are true’” (79).

As if fearlessly indifferent to charges of administrative overreach, in 2016 the OCR issued yet another Dear Colleague Letter. Its focus was transgender students.[25]  A well-known flashpoint in transgender law is the bathroom.  A legal pioneer is a boy,  Gavin Grimm, a transgender male sophomore in high school who wanted to use the boys’ bathroom.  He did so happily until November 2014, when the school board, under community pressure, told  him he must not. His Title IX case became Grimm v. Gloucester County School Board, now working its way through courts.[26] In 2019, a US District Court judge in Virginia (Arenda Wright Allen) ruled in the boy’s favor.[27]  Gavin’s mother is one of the parents who go to difficult legal lengths to give their children schools in which they can thrive.

The bathroom is not always the site of cultural craziness, certainly not in advertisements for such wholesome fixtures as safe showers, in glossy shelter magazines, and in nostalgic anecdotes about youthful escapades in  the gritty, druggy, sexy bathrooms of clubs and music venues.  Often, however, the representation of The Bathroom can turn into a cultural and political frenzy. During the struggle to make an Equal Rights Amendment constitutional, conservative voices, in opposition, said with horror that the ERA would force men and women to share public bathrooms. In March 2016, the North Carolina legislature passed a bill, since repealed, ordering trans youth to use the bathroom compatible with birth assignment. 

Given these shock tactics, the 2016 Dear Colleague Letter about transgender students was politically bold. Its terse opening paragraph, a now-familiar statement of educational culture and norms, is conventional enough, though lacking in any reference to inquiry, discovery, or learning: “Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students” (in Busch and Thro 2018, 211).  Then, the opening quickly asserts its more radical position. Title IX prohibits sex discrimination, and this “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” (211).   The OCR  “treats a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations” (213). A school’s Title IX obligation to ensure nondiscrimination on the basis of sex  requires schools “to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns” (213).  Equality is a matter of justice, not of psychic ease.

Equality is a matter of justice, not of psychic ease.Click To Tweet

There it is. So there we have it.  But wait, there it is not.  There we have it not. Legally, this 2016 Dear Colleague Letter survived but for a few months.  In August 2016, Reed O’Connor, a Texas judge much favored by conservative litigators, halted enforcement of the Obama directive.   Then, in November 2016, Donald Trump was elected president of the United States. He appointed as secretary of education Betsy DeVos, a wealthy woman from the state of Michigan, active in philanthropy and Republican politics, eager to support alternatives to established public education. She would sweep up Title IX and its histories and ride away with them toward the promised land of conservative change.

On February 17, 2017, the newly installed Trump administration revoked the Obama-era interpretation of Title IX that protected trans students.The repudiation of the “transgender letter” was but one cudgel that the Trump administration and its Department of Education wielded against the Title IX policies of the Obama administration, even though many institutions had adopted them.  That  destruction occurred in three well-orchestrated stages: a speech by Secretary DeVos, the publication of a Notice of Proposed Rule Making (NPRM), and the final promulgation of new regulations of Title IX in 2020. Each was remarkable in itself; together they brought forward a monster of an ideological and legal victory.  

The first stage: On September 7, 2017, DeVos delivered “Prepared Remarks on Title IX Enforcement” at the Antonin Scalia Law School of George Mason University.[28]   The DeVos remarks are not a loony-tunes diatribe about Title IX as the enabler of witch hunts against white men. They are brighter, more careful, lurking and sulking far less overtly  in this conservative rhetorical neighborhood. DeVos notes that 2017 was the forty-fifth anniversary of Title IX, adds a pious affirmative of its importance, and pledges to enforce it. For, she declares in reassuringly familiar language,  Title IX has helped to “make clear that educational institutions have a responsibility to protect every student’s right to learn in a safe environment and to prevent unjust deprivations of that right” (in Busch and Thro 2018, 219).  Moreover, she abhors sexual violence:  “One rape is one too many.  One assault is one too many. One aggressive act of harassment is one too many.  One person denied due process is one too many” (219).

I would be churlish to doubt the sincerity of these pieties. They then glide into sorrow, which seems oblivious to issues of racial sorrows. No matter how valuable Title IX is, she laments, it is not what it should be. “Sadly,” she declares, “too many fall short when it comes to their responsibility under Title IX” (219). Indeed, the OCR has “run amok” (223). She then progresses with anecdotal evidence of dereliction from due process. Too many “students and educational institutions” have suffered from a scourge of false accusations. They—indeed everyone—must deal with regulations that are “increasingly elaborate and confusing” (220).  Academic freedom is also at risk. “Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes” (224). In sum, “Lady Justice is not blind on campuses today.  This unraveling of justice is shameful, it is wholly un-American, and it is anathema to the system of self-governance to which our Founders pledged their lives over 240 years ago” (224).

These stirring words, this patriotic bluster, were a prelude to  the second action. The 2011 Dear Colleague Letter was rescinded.  On November 29, 2018, the Department of Education entered the second stage of its changes to Title IX implementation and issued that 150-page NPRM.[29]   Like Secretary DeVos’s speech, the NPRM is not a farrago of nonsense.  Some proposals made sense. One called for partially different regulatory regimes for schools (primary and secondary) and higher education. A ten-year-old boy child is different from a twenty-year-old college student behaving like a nasty boy child. Another semipromising idea was to alter the grievance process and replace the single-investigator model with a multistage process

Again, like Secretary DeVos’s speech, the NPRM is adamant that it should and will, at long last, provide “standards” that will “ensure a fair and factual determination” of the truth (5).   In a new regime, respondents  receive due process, not derelict processes. The authors of the NPRM chose to base its legal reasoning on Gebser v. Lago Vista Independent School District  and Davis vs. Monroe County Board of Education.  To repeat Justice O’Connor’s language, conduct must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Sex-based misconduct must rise to “that level of severity.”

At last, the DeVosian regulations

The third stage of the DeVosian actions was to garner comments on the NPRM before the publication of the final regulations or “Final Rule.”  The Department of Education received over 124,000 of them. On May 6, 2020,  after months of commentary, discussions, negotiations, and wonderment about the delay, the Department of Education released the final regulations,  “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.”[30]  Narrowing the broad scope of Title IX, it focuses on sexual harassment. However, given how pervasive sexual harassment is, and how immense US education programs and activities are, the influence of these regulations is broad and deep. In the future, its 2,033 pages of text, including 1,970 footnotes, some lengthy, will deserve study across the academic disciplines as a document about American attitudes toward sex, gender, and the law.[31]  The text includes painful statements about the many hurts of harassment, especially for women of color and the disabled.  The text also contains aggrieved, paranoid claims about the alleged biases of feminists and the vileness of the current moment: “One commenter asserts that it is especially important to raise the standard of evidence because in the current #MeToo environment women are automatically believed and men are assumed guilty” (1267).

More scholarly than a Dear Colleague Letter, more enforceable than recommendations and guidance for institutions, the “Final Rule” is to have the force of law.  The legal bondage in which the Trump administration has wrapped Title IX will not easily be unwrapped. Initially, I approached this dreadnought of a text with dread—because of what it might do to Title IX and because of its heft.  I now, reading primarily as a literary and moral critic, had to scroll down through 2,033 pages of disembowelment of Title IX. The triumphal tone of the accompanying press release provoked even more gloom—with its headline of, “Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students: New Regulation Defines Sexual Harassment, Requires Supportive Measures for Survivors, Restores Due Process on Campus.”  In the text, Kenneth L. Marcus, the assistant secretary in the OCR, crows that we are in the presence of a “game-changer.”

The legal bondage in which the Trump administration has wrapped Title IX will not easily be unwrapped.Click To Tweet

To my surprise,  I found a more complex, well-informed, and nuanced document than the initial 150-page NPRM.[32] A long opening section, a preamble, foregrounds the background and legal framework of this final rule. Such a move might be expected.  However, after about a hundred pages, between the preamble and the concluding materials, are nearly two thousand pages that summarize those over 124,000 conflicting comments that the NPRM stimulated and the department’s response to them as it formulated a final text.

The Department of Education seems to have learned from the field.  The commenters may not have spoken in vain—for example, about the effects of harassment and assault on women in all their diversity, the consequent necessity of thinking about intersectionality, and the imperative of not “re-victimizing” complainants.  “The Department,” one confessional sentence reads, “has revised many provisions of the final regulations with the well-being of victims in mind” (1353).  To my surprise,  in a document that both acknowledges discriminary differences and minimizes them, it calls for “implicit bias training” (216).[33]  Importantly, for the freedom of  institutions administering Title IX,  they can decide such major issues as the definition of sexual consent between or among people.   Under very strict limitations, recipients may experiment with informal or alternative methods of dispute resolution.  However, many United States institutions operate with tight budgets. The department admits that the new regulations will not save money and time, as promised,  but will, after all, most regrettably, end with “net costs.”

Significantly, too, the regulations expand Title IX’s definition of sexual harassment. Consolidating Supreme Court rulings with the Clery Act and with the Violence Against Women Act, they define harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature by an employee, by another student, or by a third party” (39).[34]  Harassment is also a “single instance of sexual assault, dating violence, domestic violence, or stalking” (41). Retaliation against a complainant is forbidden.

Not having access to this archive, I cannot judge the accuracy of the department’s summary of responses. Superficially, the discussion is mostly cogent, studiously polite, and occasionally, very occasionally, risible in the blandness of its mention of contemporary mores. I often felt that I was in the midst of a twenty-first-century version of medieval scholastic debates with the Department of Education as the final philosophical and legal authority.

However, remember that the 150-page NPRM begat these 2,033 pages. The extensive presentation and discussion of the comments on specific rules more often end with “Changes. None” than with “Changes.” Moreover, the commentaries begin movingly with “Stories:” about seven pages of personal narratives about sexual harassment, assault, and retaliation, and then about six pages of personal narrative from beleaguered respondents. Given how much sexual harassment has happened on American campuses, the almost equal attention to “complainants” and “respondents” is suspicious. For the quantitative imbalance supports a primary justification for the DeVosian rewriting of the rules of Title IX. Due process, especially for respondents, must be restored.  

Sadly diminished are Obama-era hopes for an expansive Title IX interpretation and enforcement.  The final rules will cleanse neither the stain nor the pain of sexual harassment and toxic masculinities from a campus. Now the obligation of Title IX administrators is to provide a clean, clear, fair, consistent, stable, predictable, and permanent grievance process for women and men alike. For men as well as women are potential victims—both of sexual harassment and of grievance processes that have “run amok.”  Committed to such a process, the regulations attend to many of its details, some good.  “Respondents,” those accused of harassment, should be given the presumption of “non-responsibility.”

 Yet again and again, the regulations betray an appropriate defensiveness and nervousness about the strict requirement of cross-examinations during post–secondary school hearings—among the most controversial of the NPRM’s wishes. The discussion of a Title IX  “cross” seeks to minimize potentially malign consequences and to maximize the benign ways in which a “cross” can work.  For example, students can have advisers present.  Even if these advisors are attorneys, and they need not be, they are not like “legal representation in a criminal proceeding” (992).  A live hearing can be virtual. Nonetheless, a cross-examination there must be, for it is the American Way of Law and a time-tested way of finding out the truth.

Setting up a specious argument, the regulations remind us that the arena of Title IX is education. Confusing the whole and one of its parts,  they assert that a Title IX hearing is about education.  The institution is “to educate, not to act as a court” (87).  Implicitly positioning itself in the long, complex arguments about academic freedom, the regulations support its most traditional formulation.[35]  Education should facilitate “the free and robust exchange of ideas” (44).   Universities ought to be “dedicated to the free flow of information” (1047).   Therefore,  participants in a cross-examination should be familiar, even comfortable, with verbal exchanges. If institutions wish to tame a possibly unruly and mean-spirited process, they surely have the ability to adopt “rules of decorum” (1072).  In brief, a disciplinary hearing, even if power or racial differentials exist, is like a well-run seminar. What silliness, what foolishness, what wholly predictable harms to come.

In the generally unexamined paeans to academic freedom, one bossy passage seems to prioritize free speech over harassing speech, including some verbal coercion. The implementation of Title IX cannot “chill and restrict speech and academic freedom” (471).  Yet the department recognizes that a tension, with constitutional implications, exists between student and faculty freedom of speech and “regulation of speech to prohibit sexual harassment.”  To loosen the tension, it applies two solvents. The first is to distinguish between the rules about physical harassment, including the nastiness of quid pro quo suggestions, and the rules about linguistic harassment.  The latter must meet the Supreme Court’s Davis standard: it must be severe, pervasive, objectively offensive, and a block against equal access to education (505).[36]  A second solvent is to call on theories of limited government. A sweeping passage declares, “There is no doubt that words can wound…. Nevertheless, serious risks attach to soliciting the coercive power of government to enforce even laudable social norms such as respect and civility” (503-4).  Reading such passages, where a superficial theory of government glides and slides over very real power and social inequities, induced some qualms about my “Coda” to come, my proposal for a “New Decorum.” 

Stay with me a little longer. Throughout the document, its authors take pains to show that a DeVosian Department of Education is fair and law-abiding. Perhaps these self-congratulatory paeans to the department are sincere.  However, given the department’s administration of other programs, these self-tributes veer toward self-delusion. Whatever the case, they are strategic. They ask us to believe that the DeVosian laws embody an irresistible vision of justice.

Here Lady Justice is blind.  She may be able to peep out from behind her blindfold to see power dynamics or racial discrimination or toxic masculinity at work. She can observe that women suffer once from harassment and again when they complain about it. Yet when Lady Justice weighs a case in her scales, she treats everyone equally.  A transgender student of color can expect fairness—be that student a complainant or a respondent.  Lady Justice is neutral but not neutered in her active administration of justice.  Given the imperative of  equal and fair grievance processes, the law of Title IX cannot be victim centered, though many complainants may prove to be  women victims and many respondents  monstrous men.  Only a careful and correct administration of  Title IX, rooted in law and due process, can render that determination.

The DeVosian Lady Justice is also immaculately detached from history.Click To Tweet

The DeVosian Lady Justice is also immaculately detached from history.  While I was reading this passage,  a friend emailed  me two 2016 documents about a law professor and her students that had gone viral, originally anonymously.  The first was a huffy, pompous letter from “Concerned Students” to their law professor who had, inappropriately to them, worn a “Black Lives Matter” t-shirt on campus. This “highly offensive and extremely inflammatory” statement was undercutting their “very solemn duty to learn and respect the law.”  The professor then seized a teachable moment to show “the substantive and analytical lessons that can be learned from the(ir) memo” as well as lessons about legal writing.   One such passage is an eloquent critique of the premise that “There is something called ‘Law’ that is objective and fixed.”  It is a salutary counterpoint to the DeVosian Lady Justice of Title IX: “Law has no meaning or relevance outside of society. It both shapes and is shaped by the society in which it functions.  Law is made by humans.  It protects, controls, burdens, and liberates humans, non-human animals, nature, and inanimate physical objects.  Like the humans who make it, Law is biased, noble, aspirational, short-sighted, flawed, messy, unclear, brilliant, and constantly changing.  If you think that Law is merely a set of rules to be taught and learned, you are missing the beauty of Law and the point of law school.”[37]

Title IX is an aspirational human-made law, which feminists and their allies have done much to create, expand, sustain, and helpfully criticize. Now, because of the DeVosian game-changer, new work must be undertaken to undo its messes.

After the DeVosian game-changer

The Department of Education/Office of Civil Rights regulations became effective on August 14, 2020. This marked a longer period from their release than normal protocol requires.  The department granted this delay because of the national emergency of COVID-19.  However, such grace and favor seemed dismayingly indifferent to the realities of institutions during COVID-19. If they want and need federal money, they must incorporate new legal and administrative demands in the midst of taking care of students, faculty, and staff during a pandemic.

Institutional responses to the new regulations fell into three patterns.[38] First, some organizations promised to assist their constituencies in navigating the new.  Second, a varied group of organizations praised the regulations and asked for their immediate implementation.  Some were ideologically conservative.  Some were advocates for free speech.   

I am a free speech advocate, yet I most strongly endorsed the third pattern: political and/or legal opposition to the DeVosian “Final Rule.” Because the Trump administration deliberately and craftily gave the regulations the force of law, it seemed that the opposition would have to have stamina—legally and politically and in the court of public opinion—in order to change them. Of the immediate oppositions, some emerged from the American Civil Liberties Union, which filed a suit on May 14 on behalf of four plaintiffs, including the advocacy group Know Your IX. On June 4, eighteen Democratic attorneys general filed their suit to block the regulations. On June 24, the American Council on Education and twenty-four other higher education groups filed an amicus brief in the United States District Court in the District of Columbia. Decrying the regulations as a “sea change” (4) in Title IX administration, the brief calls for an extension of the deadline that institutions must meet  in order to start carrying them out.  It succinctly outlines the waves of this sea change—among them a new definition of sexual harassment, new practices for adjudicating Title IX complaints, the nature of the specified appeals mechanism, and the revision of informal resolution procedures.[39]  

The next months saw a spectrum of activities. Not surprisingly, on July 15, fourteen Republican attorneys general filed a brief in defense of the new regulations. Then, on November 3, Joseph R. Biden was elected president of the United States.  He has vowed to put an end to DeVosian regulations, most specifically in a statement on March 8, 2021, International Women’s Day. This vow has provoked another spectrum—of  real or potential responses. The supporters of the DeVosian “game-changer”  will want it to stay.  Opponents of the “game-changer” may want it to go, but some believe that it would be impossible simply to return to the 2011 guidance about sexual harassment. The New Paradigm had its problems.  Moreover, too much other than the DeVosian regime has happened (Anderson 2021b) since then.

In a nasty last hurrah, the DeVosian regime kicked up its heels on the way out the door.  A new Department of Education memo limited protections for LGBTQ people under Title IX.   Your sex is your biological sex, male or female.  As a result, it cannot be discriminatory if a transgender student is forbidden to use the “bathroom not of their biological sex” (Anderson 2021a).

In this vexed, partisan, and volatile setting, legal groups and their supportive advocates  must change regulatory law.  As feminists watch or participate in the  dismantling of the DeVosian regulations and the implanting of new, I suggest a checklist of seven questions. What strategies will be in place to prevent sexual harassment? How and by whom will complaints be made?  Will women of all races, people of color, LGBQ people, and trans people feel empowered?  What will the institution, the “recipient,” do with complaints?  Will “the respondent,” against whom a grievance has been filed, get due process? Will the institution offer a curriculum that studies sex, sexualities, gender, and race? And finally, is the implementation of Title IX a part of the larger struggle for an equitable and inclusive campus?

Coda:  The New Decorum

Title IX is a law that enables gender equity in education.  Its core has been stable, its implementation unstable.  To help sustain the overarching purpose of Title IX during varying periods of implementation, people need a consistent everyday ethical practice. I suggest the New Decorum, which has many roots in feminism.

Do not immediately reject the word “decorum,” though it is much maligned.  I realize the risks I am taking with the New Decorum. Decorum means what is proper, fitting, or appropriate, but even to propose a New Decorum may seem to evoke an outmoded and misused “civility.”[40] Certainly, I found these connotations in the DeVosian regulations.

Professionally, “decorum” can evoke a patronizing gentlemanliness. Even such a robust and historic document as the “1915 Declaration of Principles on Academic Freedom and Academic Tenure” states that a scholar (always a he) must teach with “dignity, courtesy, and temperateness of language”

Socially and more broadly, decorum can elevate etiquette over real feelings, praise prissiness,  and delight in such social rites as gently passing tea cups around a well-laid table.  At the best of their worst, the decorous can be hypocrites.  At the worst of their worst, they mask bloody behaviors behind the courtesies of “the gentleman” and “the lady.” The history of slavery and race in the United States exemplifies such an elaborate protocol rooted in money, greed, brutality, and viciousness.

Moreover, in culture after culture, women are to marry such codes of behavior with subordination to the men of their class.  Growing girls must learn and internalize these obligations.  One of my granddaughters, Ella DuBois Wood, now a teenager, is writing a novel about a girl who rebels, running away from an arranged marriage and a father’s patriarchal imperatives.  The rebel mockingly parrots her father: “A lady should never speak out of turn. A lady should never get in the way. [Ladies] should be well dressed and well mannered for any public event. And most importantly, a lady should always listen to her husband.”

My gamble is that people can transvalue “decorum” in the quest for ethical practices that supplement the law, so necessary for life, so insufficient without people freely choosing virtuous habits. The New Decorum differs from the old in three ways. The first is a clear, often sickening, consciousness of the deep dangers of the Old.  The second is the resolve to amputate these dangers from the body politic and the self. The third is the recognition of the pluralism and multiculturalism of contemporary society. This demands an incessant mindfulness and respect for differences and an equitable diversity.  Feminism has steeped me in this truth.

So imagined, the New Decorum calls for an appropriate and fitting restraint of certain feelings and desires that threaten a just community. The selfish libido needs to be constrained. The psychological comfort of dehumanizing the other needs to be expunged. The slimier power drive needs to be held in check.  Self-discipline is both a personal virtue and a social benefit.  Such practices can dynamically coexist with laws to improve well-being. Drivers have learned to wear seatbelts.  Smokers have learned to abstain indoors. Most students, faculty, and administrators have learned to live with the prohibition of discrimination outlined in Title IX. With a president other than Trump, Americans might have accepted new laws and practices about wearing masks during a pandemic.  In brief, the moderate, partially abstaining self is a tool for ethical community building.[41]  Those communities include great political movements. Nonviolence, for example, demands conscientious self- and group control.  

Think of the New Decorum as a pattern of due process in human relations that calls for personal restraint and deep consideration of others.   Informed by long-standing feminist ideals, none of the elements of a New Decorum is avant-garde.  All may reek of conventional wisdom. However, conventional wisdom can be wise.

A foundational element is respect for an individual’s psychological identity and bodily autonomy.  Extending respect is a difficult mixture of assuming the worthiness of the other and prohibiting behaviors that would smear and nullify that assumption.  Among these behaviors are sneers, insults, condescension, and physical intrusions, no matter how genial they might seem.  Despite the militant Trumpian weaponization of disrespect for the other, the respect for respect now seems a multipartisan ethic. DeVos, in her George Mason speech, proclaims, “Every person on every campus across our nation should conduct themselves with self-respect and respect for others” (219).  A danger is that respect for respect has become too easy a piety, a T-shirt slogan. Indeed, on the campus of New York University Abu Dhabi, I saw a young man wearing a t-shirt, white lettering on black cotton, “Take A Stand/Earn Respect.”  It is only too comfy for most of us to pull such a T-shirt off the shelf or out of the laundry bag.

The New Decorum realizes that giving and earning respect is hard, endless work.  Its hope is to gain a deep, even visceral understanding of the differences among the denizens of earth.  In part, these are differences of identity and their intersectional complexities. In part, and operating in tandem, these are differences of power. To understand these differences is to grasp, no matter how much it hurts, our group and individual histories.  To live with history is to acknowledge the harms of history. Only that will begin to dispel them.

To live with history is to acknowledge the harms of history. Only that will begin to dispel them.Click To Tweet

The campus is the place of formal education—as the hospital is the place of care for the ill.  Wisely, the 2016 AAUP report recommends that faculties consider developing a public forum and a curriculum about “all forms of inequality on campus, including inequalities of race, gender identity, class, and sexual orientation” (97).  The curriculum should, I suggest, include models of inclusion, belonging, and equality as well.  What is the future with which we might align and alloy ourselves? However, being able to footnote power  in an academic paper must be inseparable from a refusal to intimidate or exploit students or those with lesser power.  Of course, when I teach, I have some powers—to organize knowledge, to ask for a student’s trust that my organizational skill is valid, to oversee the process of a classroom, and to judge a student’s work. I also have the power to choose whether I will exercise my powers decently or not.  The New Decorum asserts, impatiently, that this is not a choice.

The New Decorum supports academic freedom, robust and honest speech, and its practitioners enjoy such speech—when they can. One of the agonies of our present moment is the global rise of  authoritarian governments  that dismantle academic and press freedom as a pre-condition of securing power.  Politically, the New Decorum must oppose them.

Unfortunately, even in happier circumstances, people shrink away from the rigors of critique,  inquiry, and the process of discovery. These can be respectful but not sanitized of truthfulness. If we so wipe away truthfulness,  we are among both the most self-deceptive and the most dangerous of the dwellers in Plato’s cave. I must be able to say to a student or a colleague or a community, “You are right, but only partially,” or “You are wrong, but only partially,” or a polite version of “OMG” or a blunt “This is really bad work.”  Inevitably, I must be able to listen to comparable remarks about my sweet and salty words.

A grounding belief in academic freedom forces us to confront the question of humor and laughter.   The imp of satire sits mischievously on one of my shoulders.  The gnome of irony occupies the other. I delight in these trolls.  I fear driving laughter underground, the imp of satire into a closet and the gnome of irony into a cave. Yet satire and irony can be perilous. Irony is easily misunderstood. Teaching at New York University in Abu Dhabi, with students from around 110 different countries, I found that many students could hear only one voice in the double-voice of irony, the words without the ironic tone. That common tool of multilingual exchanges, Google Translate, also trends toward literalism.   If I was to teach well, plain speech was initially best—-until the students got used to me and I to them. Then we could laugh more comfortably. Moreover, both irony and satire can be weaponized—be it coolly or raucously.  Within  a community, the shared humor of one group can, no matter how inadvertently, seem exclusionary to people outside of the group and easily misunderstood.[42]

The New Decorum must have comedy in all its rich variety. I will remain faithful to the imp of satire and the gnome of irony.  Comedy is purgative, self-healing, a social bond, a great form of truth-telling, and an art. However, currently on our campuses, perhaps I should heed the advice about humor from a very competent Title IX administrator, “At this moment, the first joke should be on yourself.”

Humor is compatible with a dollop of kindness and with the  dose of courage that will be required for the inevitable struggles for equality.  As for the New Decorum and a once-again reformed Title IX,  both may help to heal the wounds of dereliction and prevent new gashes and slashes in the variegated worlds in which we seek knowledge, wisdom, and well-being.

This, certainly, is my hope for my writing granddaughter Ella DuBois Wood and her generation.

References

AAUP (American Association of University Professors). 2016. “The History, Uses, and Abuses of Title IV.” Report. https://www.aaup.org/file/TitleIXreport.pdf.

Anderson, Greta. 2000. “U.S. Publishes New Regulations on Campus Sexual Assault.” Inside Higher Education, May 7. https://www.insidehighered.com/news/2020/05/07/education-department-releases-final-title-ix-regulations.

———. 2021a. “Department of Ed Says Title IX Does Not Apply to LGBTQ Discrimination.” Inside Higher Education, January 12. https://www.insidehighered.com/quicktakes/2021/01/12/dept-ed-says-title-ix-does-not-apply-lgbtq-discrimination

———. 2021b.  “A Long and Complicated Road Ahead.” Inside Higher Education, January 22. https://www.insidehighered.com/news/2021/01/22/biden-faces-title-ix-battle-complicated-politics-and-his-own-history.

Baer, Ulrich.  2019. What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus. New York: Oxford University Press. 

Bauer-Wolf, Jeremy. 2019. “2 Decades of Abuse, 177 Victims, No Action.” Inside Higher Education, May 20. https://www.insidehighered.com/news/2019/05/20/former-ohio-state-doctor-abused-nearly-200-young-men-no-consequences-decades.

Bloom, Allan. 1987. The Closing of the American Mind. New York: Simon & Schuster.

Booth, Alison. 2017/2018. “Comment: From Jane to John: Protecting Transgender Individuals’ right to Bathroom Access under Title IX.”  Cumberland Law Review 48: 519-51.

Boston Globe. 2014.  “Rethink Harvard’s Sexual Harassment Policy.” October 14. https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html.

Brodsky, Alexandra, and Elizabeth Deutsch. 2015. “The Promise of Title IX: Sexual Violence and the Law.” Dissent (Fall): https://www.dissentmagazine.org/article/title-ix-activism-sexual-violence-law.   

Busch, Elizabeth Kaufer, and William E. Thro. 2018. Title IX: The Transformation of Sex Discrimination in Education.  New York: Routledge.

Edwards, Sarah. 2015. “The Case in Favor of OCR’s Tougher Title IX Policies: Pushing Back against the Pushback.”  Duke Journal of Gender Law and Policy 23(1):121-44.

Erdely, Sabrina. 2014. “A Rape on Campus.” Rolling Stone, November 19.

Gersen, Jeannie Suk.  2020. “How Concerning Are the Trump’s Administration’s New Title IX Regulations?” New Yorker, May 16. https://www.newyorker.com/news/our-columnists/how-concerning-are-the-trump-administrations-new-title-ix-regulations.

Gersen, Jacob E., and Jeannie Suk. 2016. “The Sex Bureaucracy.” California Law Review 104(4):881-948.

Green, Erica L. 2020. “DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct.” New York Times, May 6. https://www.nytimes.com/2020/05/06/us/politics/campus-sexual-misconduct-betsy-devos.htm.

Halley, Janet. 2015. “Trading the Megaphone for the Gavel in Title IX Enforcement.” Harvard Law Review 128: 103-17.

———. 2016. “The Move to Affirmative Consent.” Signs: Journal of Women in Culture and Society 42(1):257-79.

Jaschik, Scott. 2016. “The Law Professor Who Answered Back.” Inside Higher Education, July 12. https://www.insidehighered.com/news/2016/07/12/law-professor-responds-students-who-complained-about-her-black-lives-matter-shirt.

Kennedy, Rosanne, and Hannah McCann. 2020. “Splitting from Halley; Doing Justice to Race, Unwantedness, and Testimony in Campus Sexual Assault.” Signs 46(1):79-102.

Kimmel, Adele P.  2016. “Title IX: An Imperfect but Vital Tool to Stop Bullying of LGBT Students.” Yale Law Journal 125(7):2006-36.

Knava, Petr. 2018. “Law Professor Absolutely Destroys Student Letter Protesting Her Wearing a ‘Black Lives Matter’ T-Shirt,” Pajiba, March 2.  https://www.pajiba.com/miscellaneous/law-professor-absolutely-destroys-student-letter-protesting-her-wearing-a-black-lives-matter-tshirt.php. 

Koss, Mary P., Jay K. Wilgus, and Kaaren M. Williamson. 2014. “Campus Sexual Misconduct: Restorative Justice Approaches to Enhance Compliance with Title IX Guidance.” Trauma, Violence & Abuse 15(3):242-57.

Lukianoff, Greg, and Jonathan Haidt. 2015. “The Coddling of the American Mind.” The Atlantic, September. https://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/.  

———. 2018. The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure. New York: Penguin.

MacKinnon, Catharine A. 1979. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven, CT: Yale University Press.

———. 2016. “In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education.”  Yale Law Journal 125(7):1820-2181.  

MacKinnon, Catharine, and Durba Mitra. 2019. “Ask a Feminist: Sexual Harassment in the Age of #MeToo.” Signs 44(4):1027-43.

Macur, Juliet. 2020. “‘One of Them’: Gymnasts’ Call to End Abuse Is Now Global.” New York Times, August 3: D1, D4.

Peterson Alyssa, and Olivia Ortiz. 2016. “A Better Balance: Providing Survivors of Sexual Violence with ‘Effective Protection’ against Sex Discrimination through Title IX Complaints.” Yale Law Journal 125(7):2132-55.

Powell, Michael. 2020. “Some Feminist Scholars Say New Assault Policy Is Fair to the Accused.” New York Times, June 25: A20.

Rao, Devi M. 2013. “Gender Identity Discrimination Is Sex Discrimination: Protecting Transgender Students from Bullying and Harassment Using Title IX.” Wisconsin Journal of Law, Gender, and Society 28: 245-70.

Reynolds, Celene. 2019. “The Mobilization of Title IX across U.S. Colleges and Universities, 1994-2014.” Social Problems 66(2):245-73.

Sandler, Bernice R. 2018. “‘Too Strong for a Woman’—the Five Words That Created Title IX.” In Busch and Thro 2018, 111-20. 

Scott, Joan Wallach. 2019. Knowledge, Power, and Academic Freedom. New York: Columbia University Press.

Seelye, Katharine Q. 2019. “Bernice Sandler, ‘Godmother of Title IX,’ Dies at 90.” New York Times, January 9: B10.

Shulman, James L., William G. Bowen, Lauren A. Meserve, and Roger C. Schonfeld. 2001. The Game of Life: College Sports and Educational Values. Princeton, NJ: Princeton University Press.

Stevenson, Betsey. 2007. “Title IX and the Evolution of High School Sports.” Contemporary Economic Policy 25(4):486-505.

Stimpson, Catharine R. ed. 1972. Women and the Equal Rights Amendment. New York: R.R. Bowker.

———, ed. 1973. Discrimination against Women: Hearings on Equal Rights in Education and Employment. New York: R.R. Bowker.

United States Department of Education, Office for Civil Rights. 2011. “Dear Colleague” letter,  April 4. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.

United States Department of Justice. 2012. “Equal Access to Education: Forty Years of Title IX.” June 23.

Vance, Carole S., ed. 1984. Pleasure and Danger: Exploring Female Sexuality. Boston:  Routledge and Kegan Paul.

Warakoo, Natasha. 2016. The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Institutions. Chicago: University of Chicago Press.

Ware, Susan. 2007. Title IX: A Brief History with Documents.  Boston: Bedford/St. Martins’s.

Yang, Wesley. 2019. “The Revolt of the Feminist Law Profs: Jeannie Suk Gersen and the Fight to Save Title IX from Itself.”  Chronicle Review, August 7. https://www.chronicle.com/article/the-revolt-of-the-feminist-law-profs/ 

I am grateful to the members of the Gender Brown Bag Group, New York University Abu Dhabi, for their comments on May 5, 2019; to the participants in the School of Criticism and Theory at Cornell University for theirs on June 17, 2019; and to Judith G. Miller, Lance Liebman, Julia Adeney Thomas, Elizabeth Wood, Rosemary Byrne, and Barbara Gillers for conscientiously reading written drafts. My thanks, too, to Suzanna Walters and Miranda Outman for their probing questions and meticulous editing. Errors that remain are my fault, and my fault alone.

Notes

[1] A excellent survey of Title IX issues is “Campus Cultures and Title IX,” the digital archive accompanying Halley’s “The Move to Affirmative Consent” (2016): http://signsjournal.org/currents-affirmative-consent/campus-cultures-and-title-ix/. For journalistic accounts of feminist debates, see Yang (2019) and Powell (2020).

[2] Sponsored by the Barnard Women’s Center, the conference’s title was “The Scholar and the Feminist IX: Towards a Politics of Sexuality.”

[3] Sandler (2018) and Seelye (2019) are good accounts of Sandler’s work.

[4] WEAL dissolved in 1989.

[5] In the early 1970s, I edited a packaged version of these hearings.  See Stimpson (1972, 1973).

[6] Stevenson’s valuable article focusses on high school sports, which have more players than college sports. For a pioneering study of college sports, see Shulman et al. (2001).

[7] See https://www.atixa.org/

[8]  The case is Meritor Savings Bank v. Vinson  477 U.S. 57 (1986).  Mitra’s interview of MacKinnon in Signs (2019) is a wonderful introduction to MacKinnon’s historic career, including her  work on sexual harassment. Indeed, one can trace that career through her publications in Signs.

[9] Alexander v. Yale University, 459 F. Supp. 1 (D. Conn. 1977).

[10] Cannon v. University of Chicago, 441 U.S. 677 (1979).

[11] Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

[12] Gersen and Suk oppose “ordinary sex” to “violent, coerced or abusive sex” (2016, 885). They offer a narrative about Title IX that is both more scathing and larger than my own. They trace a “sea change in how sex is legally regulated in the United States” (883). Through bureaucracies, such as the administration of Title IX, the “federal bureaucracy is now regulating sex itself” (883).  Colleges and universities are “particularly important loci” of sexual bureaucracies (884), but they can be found elsewhere.  I read this article as a tough-minded warning against bureaucratic overreach and the zealous infusion of normative values into administrative acts.

[13] Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).

[14] Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999).

[15] See https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.  The document is now marked “Rescinded,” an act of  the Trump Administration’s  Department of Education under Secretary Betsy DeVos.

[16] See Reynolds (2019), an important and original article about the “mobilization” of Title IX from 1994 to 2014. Although I am focusing at sexual harassment, Reynolds shows how consistent and common complaints about academic discrimination have been in the institutions on which she focuses. Complaints about sexual harassment clearly have more traction and drama in the public understanding of sex discrimination than complaints about academic discrimination.

[17] The “conservative media” was frequently skeptical.  See, for example, the sharp, incisive work of Jillian Kay Melchoir of the Wall Street Journal on several platforms.

[18] The article was Sabrina Erdely’s “A Rape on Campus” (2014). The article was retracted on April 5, 2015. The university in question was the University of Virginia.

[19] A common estimate is that students have filed about two hundred suits saying due process has been denied. See, for example, the 2018 Department of Education’s Notice of Proposal for Rule Making (NPRM), p. 14.

[20]  A text of this statement appeared in Boston Globe (2014).

[21]. Rosanne Kennedy and Hannah McCann thoughtfully review Halley’s work, arguing that she is “unwilling to acknowledge the importance of feminist perspectives on power and subordination “(2020, 91-92). They show how Halley, after calling for feminists to govern, is suspicious of feminist governors. They also support my critique that “Trading the Megaphone” ignores the predations against Black women and their courageous responses against them.  Halley (2016) has also criticized the concept of “affirmative consent” and its adaption in campus sex codes and state criminal law, offering her own definitions.

[22] See Bauer-Wolf (2019) for an account of the abuse of male athletes at Ohio State University.

[23] Using both the court of public opinion and the judicial system, women testified against Nassar on January 19, 2018, at his sentencing hearing.

[25] Rao (2013) is helpful on law about transgender students.

[26] Grimm v. Gloucester County School Board, No. 19-1952 (4th Cir. 2020).

[27]  I have relied on Booth (2017/2018), but it was published before the 2019 decision.

[28] The text I am using is in Busch and Thro (2018, 218-27). Antonin Scalia’s votes on Title IX cases were “conservative.” Secretary DeVos’ grown-up name is Elisabeth Prince DeVos.

[29] Info. Docket ID ED-2018-OCR-0064.

[30] Department of Education,  4000-01-U,  34 CFR Part 106, [Docket ID ED-2018-OCR-0064], RIN 1870-AA14,  Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal 486-505. Agency: Office for Civil Rights, Department of Education. Action: Final rule. Note that the official version is the document published in the Federal Register on May 19, 2020.

[31] The document is also fascinating about religion and religious institutions, but that must be the subject of another article.

[32] My response parallels that of Gersen (2020).

[33] An example of this oscillation between acknowledgement and diminishment is a passage about transgender people.  The department admits that it does not use the word “transgender” but seems to argue that transgender students are nevertheless covered in principle.  (1926-72).

[35] Less traditional readings include see Baer (2019).

[36] But see also the definition of sexual harassment in section 106.30

[37] I first read the letters in Knava (2018). Scott Jaschik (2016) soon identified the professor as Patricia Leary, the law school as Whittier.  His article also printed the letters. My thanks to Domna Stanton for this reference.

[38] On the accounts of these responses, see Anderson (2020).

[39] See the American Council of Education et al.,’s amici curiae brief, filed in the case of Commonwealth of Pennsylvania et al. v. Elisabeth DeVos, June 24, 2020:  https://www.acenet.edu/Documents/Amicus-Brief-DC-District-Court-Title-IX-062420.pdf

[40] With her habitual brilliance, Joan Wallach Scott (2019) makes this argument, see esp. 51, 53-56, 69-74. I use “New Decorum” rather than “New Civility” because “civility,” linked to “civil,” implies an organized, often legally sanctioned civil society.

[41] I thank Hent de Vries for using the word “ascesis” in a discussion of the New Decorum, personal correspondence, June 19, 2019.

[42] Natasha Warakoo in The Diversity Bargain (2016) writes about students at Oxford, of all races, who indulge in shared racist jokes and wonder why anyone would think they themselves were racist.