Sexual Assault

Common Sense Interpretation of Title IX Is Best Answer To "Bureaucratic Sex Creep Gone Wild"

Instapundit Glenn Reynolds lays out reform that will maintain antidiscrimination law while taming its excesses.

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There's little question that Title IX of the Education Amendments of 1972, which bars discrimination in federally funded schools and programs, has been interpreted by education bureaucrats and college administrators as mandating that they peer into every nook and cranny of university life. As Glenn Reynolds of Instapundit and the University of Tennessee's law school writes, "from this small, simple statement — there shall be no discrimination on the basis of sex — has been created a regulatory Tower of Babel governing sports teams, student discipline and even, and most dubiously, sexual consent."

Indeed, as Cathy Young documented in a January 2014 cover story for Reason magazine, much of the climate of hysteria on college campuses around sexual activity can be traced back to a "dear colleague" letter from the Department of Education's Office of Civil Rights, which urged university administrators to lower the burden of proof and reduce due process protections when prosecuting cases of rape and harassment. As Linda LeFauve and Robby Soave have shown, that sort of decision didn't simply come out of the blue but followed a decade or more of extremely dubious social science capturing the minds of administrators and regulators.

Writing in USA Today, Reynolds says that one good aspect of a Donald Trump administration may be the rollback of the most extreme (and ultimately pernicious) interpretations of Title IX. He stresses that the reigning interpretation of Title IX is not actually law or even fully articulated and binding rules. Rather, the "dear colleague" letter is used to nudge institutions along without necessarily taking full responsibility for any outcomes.

The new Education Department [might] do something the previous department didn't do — probably for fear of being overruled by the courts — which is to actually promulgate new binding regulations after notice and comment. Those regulations might say that colleges should turn over complaints of sexual assault to law enforcement authorities, and that things like "microaggressions" and opinions with which one disagrees do not constitute "discrimination."…

Ideally, we'll take an approach based on due process and common sense, which would represent a considerable change over the past several years' policies.

One thing is clear: The micromanagement of universities — and of students — in the name of Title IX needs to change.

Read the whole thing here. Relying on the Trump administration to exercise "common sense," as Reynolds hopes, may be a bridge too far, but his proposed Secretary of Education, Betsy DeVos, is likely to agree with the notion of Title IX overreach.

In 2015, Reason TV talked with Robby Soave about "3 of the Most F*cked-Up College Campus Stories of the Year." Check it out here:

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  1. What did Robby eat some bad fruit sushi and not come in today, so Nick had to take over the click bait beat?

    1. I like to think that Robby turned in his article this morning then left for a holiday vacation, forcing Nick to take over since everyone else was busy. It would amuse me if he wound up posting everything over the next couple days as everyone leaves.

  2. How about instead we have the Federal Government get out of the education business.

    1. And while we are at it, let’s get rid of social security, legalize drugs, repeal the income tax, stay out of foreign conflicts and eliminate the majority of federal government departments.

  3. Jesus, it looks like an unhinged Islamonazi just tried to take out the Russian ambassador to Turkey.

    Let’s all hope this doesn’t lead to World War III. If it does, I know the Hilbots will say it’s Trump’s fault, but still.

    1. Well, first they’ll say that, if he doesn’t go to war with Russia to defend Turkey, it’s proof that he’s a Putin Stooge against NATO. Then, they’ll say that the war was his fault.

    2. Yeah… attacking the Russian state is more “blowback” and less “unhinged Islamonazi”. Shit, if they kept their nastiness to attacking governments that bombed them, they would be fairly defensible.

    3. No one would ever go to war over an ambassador

      1. It was probably over a youtube video, anyway.

        1. Yeah, dude was asking for it

      2. He was killed, by a person id’d as a Turkish policeman. And yes of course he yelled “Allahu Akbar” while doing it.

        1. Which is just like “how ya doin”

    4. Now confirmed that the ambassador is dead. Not good.

      By the way, if, heaven help us, hostilities were to break out between Turkey and Russia, we’re technically obligated to defend Turkey under NATO. Trump can’t get us out the heck out of NATO fast enough. I hope it’s one of the very first things he does.

      1. THIS, THIS, a thousand times THIS!! There is no fucking way, in any version of a remotely sane universe, in which we should fight WITH Turkey, AGAINST Russia (as they stand now). During the Cold War, it made perfect sense. Communism was the evil ideology that was threatening the world, and Turkey was a secular state.
        Russia isn’t threatening on a global scale, and Turkey is sliding into Islamism (at least enough people in the government are). Putin isn’t a “good guy”. But, he is an old-fashioned autocrat, not a totalitarian. And Islamism IS totalitarian in nature.

      2. Can a member state be ejected from NATO? Can they be “censured” or similar before then, to prevent the mutual defense clause from being invoked on their behalf?

  4. I wonder if that dopey chick feels an ounce of shame or if, like justice and fairness and basic common decency, it’s subverted into the cause.

    1. Very, very, very highly doubt it. I’ve no doubt that her ruining a man’s life got her a sweet gig in the performance art world. And everybody in that world will doubtlessly tell her endlessly what a brave, selfless heroine she is for “standing up to the patriarchy”. And if she’s no underlying moral compass to start with, the positive reaction from everyone in her little bubble will be all she’d have to go by.

    2. just like every time I saw a picture of Monica Lewinsky, I thought “Blowjob”, whenever I see a picture of Emma Sulkowicz, I think “Butt Stuff”.

      So, she’s got that going for her.

      1. I bet it’s on her Tinder profile. Pity the fool who swipes right.

      2. I’d butt stuff.

  5. “Bureaucratic Sex Creep Gone Wild”

    But enough about Carlos Danger.

    1. I was thinking Joe Biden, but whatevs.

      1. Uncle Joe just thought you looked tense and might need a deep-tissue shoulder massage. Nothing creepy about that.

      1. And a movie of that title has been optioned, but they’re changing “bureaucratic” to “nympho”

    2. Scrapped working title of Bill Clinton’s planned memoir of his time as First Bro of the US.

  6. We cannot count on Trump being reasonable, but the current unreasonable state of affairs is caused by Obama with the support of the Democrat establishment who are supposedly part of the reasonable crowd.

    Maybe we live in the Bizarro universe.

  7. “Bureaucratic Sex Creep Gone Wild”

    The only Bureaucratic sex creep I know of is Crusty.

    1. You take that back – he is no bureaucrat!!!!

  8. “from this small, simple statement ? there shall be no discrimination on the basis of sex ? has been created a regulatory Tower of Babel governing sports teams, student discipline and even, and most dubiously, sexual consent.”

    On a serious note, calling Title IX after “administration guidance” a Tower of Babel is excellent. Excellent.

  9. Glenn Reynolds lays out reform that will maintain antidiscrimination law while taming its excesses.

    I respect Glenn Reynolds’ view on policy issues – he generally gets it right; less so for nick lately – but this idea about “common sense” is nonsense. Anti-discrimination law is BAD law. Today’s ‘common sense’ is tomorrow’s batshittery. Or vice-versa. “common sense” doesn’t exist.

    Title IX should be repealed because the underlying facts have changed, and women now represent the majority on college campuses. Treating them like an oppressed class just leaves open opportunity for exploitation of the law by institutionalized victim-mongers.

    Simply telling colleges to ‘defer to law enforcement’ isn’t necessary because that’s what they’d be forced to do in the absence of Title IX.

    Robby et al have written about the @()#*@ law for years now, pointing out how bloody awful it is in every respect, and yet i haven’t ever once seen a single simple argument that “The law should be repealed”. And neither has there ever been any decent explanation “Why not”. Its simply avoided; and the only conclusion I can draw is that it would be seen as “anti-woman”, politically. Which strikes me as rather gutless = if you can’t advocate for the repeal of a law so awful in its effects – and so *unnecessary* given the current status quo of a female-majority student-body – what *will* you stand up for and insist ‘must go’?

    1. Repealing the law is a non-starter. Sans Title IX, women will be in burkas and forced to provide three witnesses in every rape case.

      1. Sans Title IX, women will be in burkas and forced to provide three witnesses in every rape case.

        I know this is the reductio-ad-absurdem argument against repeal – but is there any *sane* one? Because as i said above – no one even *tries* to say, “Sadly this isn’t possible because of practical reasons like ______”

        If there are very good political reasons it can’t be repealed, i’d like to hear it. Saying, “a bunch of women’s groups will scream like banshees” is already given; hell, they do that as a daily exercise.

        Even if repeal isn’t practically possible at the moment, i’d like to see someone at least lay out the reasons why in very clear and explicit ways so that we could actually see what a tactical approach to “ending” bad laws would look like. No one tries – they simply stop with a handwaving gesture about how “it wouldn’t be popular”. Well, boo-hoo = of course it wouldn’t be popular. If being popular is the only way anything ever gets done then we might as well lie down, roll over and accept the inevitable assrape of an endlessly expanding government.

        1. we might as well lie down, roll over and accept the inevitable assrape of an endlessly expanding government.

          – which, btw, i think is a succinct summary of the Niskanen Center/Will Wilkensen-argument about why libertarians need to stop bitching about ‘smaller govt’, because its never going to happen; we might as well accept it, and instead try and make the inevitably-ubiquitous government more *libertarianish flavored*

          i don’t think much of this POV, if it isn’t already obvious.

        2. If being popular is the only way anything ever gets done then we might as well lie down, roll over and accept the inevitable assrape of an endlessly expanding government.

          Every time you roll over and accept the inevitable assraping, a cultural libertarian gets xis/xer drink.

        3. Meh, honestly? I’m guessing somewhere there are some girls’ (yeah, I said girls) sports teams in middling colleges that wouldn’t exist if it weren’t for title IX. The entirety of the bad law therefore must be upheld because someone’s daughter might be denied a chance to play fast pitch.

          1. there are some girls’ (yeah, I said girls) sports teams in middling colleges that wouldn’t exist if it weren’t for title IX

            probably true.

            and for every 1 of those there’s probably 3 incredibly-talented wrestlers whose athletic careers are ended prematurely.

      2. three non-participating witnesses

    2. * it sort of reminds me of the “corn ethanol” mandate/subsidies = a law that almost no one will defend on the facts; its costly, economically harmful, environmentally counter productive, and only benefits a connected-few….

      …but no one will dare repeal it, lest they be singled out by the corn-lobby, or the green lobby, or the ag-lobby…. people who receive similar subsidies and don’t like the “repealing-stuff” precedent being set.

      The only way it could be nixed is if everyone got on board simultaneously and agreed; which no one wants to do anyway since they always jostling for an angle to demonize one another.

      Its a pathetic example of how even the most trivial, widely-acknowledged-as-bad laws become permanent because of politics.

      1. Its a pathetic example of how even the most trivial, widely-acknowledged-as-bad laws become permanent because of politics.

        That’s just the way it is now. Repeal is not politically possible anymore. Maybe things will change in this new Age of Trump, but I doubt it.

        1. That’s just the way it is now.

          I think i was just saying that this “appeal to the status quo”-non-argument is exactly whats so insufficient.

          yes, i know that’s what people keep saying. But no one bothers to do the due-dilligence as to why, or to ever articulate what precisely needs to change in order for that status quo to no longer be the case.

          1. People only care about things that directly affect them. If a law doesn’t affect a person, it can be ignored. If a law does affect a person, they will find a way to have it not. If there is no way to have it not, they will find a way to minimize the impact.

            Through many conversations I’ve had, people see the legal code of the US a a giant, complex tangle. If you pull one thread, the entire thing will fall apart because of how complex and interconnected everything is. Which means people would rather rearrange their lives than run the risk of government collapse.

            1. Personally, I think the government needs a collapse and reset for any necessary changes to be made. It took a sword to undo the Gordian Knot.

            2. all true.

              none of it is really addressing my point about the lack of specifics in claims about “why Title IX can’t be repealed”

              saying that anything short of a total collapse of government is insufficient to change bad law is basically the same “roll over and take it (in the meantime)” argument i pointed out above.

              its also a strange rationale – because it seems to say that “small changes” are impossible, but huge ones are?

              1. none of it is really addressing my point about the lack of specifics in claims about “why Title IX can’t be repealed”

                It is addressing your point, just in a way that you won’t accept. Things won’t change because people are afraid of change they don’t like. And no, there is no chance of a huge change taking place. That’s just what is necessary to effect the necessary changes, in my opinion.

                1. Things won’t change because people are afraid of change they don’t like

                  This sounds very similar to rhetorical claims about why “Trump would never be president”

                  I get your point and agree; broad, generic distaste for change is recognized. I understand there are general institutional and popular obstacles to repealing laws. all of that is already assumed.

                  my point was that “policy analysts” (*if you want to be generous and call Robby that re: Title IX) who regularly document the failings and horrors of these bad laws don’t seem to ever bother with the due-diligence of actually looking at what the specific obstacles to change are. What organizations are the ones preventing discussion of the subject? Who’s the source of money for those organizations? what legislators are the point-people, and so on…

                  I imagine if you asked some gun-rights groups in the 1990s whether there would ever be any change to NFA laws that would make, say, things like “Suppressors” potentially ‘over the counter’ sales? they’d say the same thing you do = “Not possible, people are scared of these things, no money supporting it, blah blah blah.” Its short-sighted – sure those things are true… but which of these things need to change for it to be *less true*?

                  1. but which of these things need to change for it to be *less true*?

                    Get the government and the media to stop playing the politics of fear. Everyone even remotely connected to government (e.g. Lobbyists) have figured out that fear is a huge driver for pushing their desired changes. Turn on the TV and flip through all of the news broadcasts. You’ll be bombarded with all of the things you should be afraid of and on occasion told how the government will save you from that fear. It’s being hammered into people endlessly that only government can protect them. You’ll never get a rational reason why certain parts of government can’t be undone when fear was the leading cause of them being put in place. You’ll need to find a way to get people over their fear. And not just a small number of people either.

                    1. As noted above – I think there’s a very strong possibility that suppressors are going to be legal in the next year or two, and it wasn’t because of any broad, generic “ending of the politics of fear”.

                      It was because of people spotting a specific narrow opportunity, and getting specific legislators on board with it. And finding a specific political angle (“hearing safety”) that helped communicate it to the public.

                      sweeping generalizations about generic and amorphous obstacles to change is exactly what i’m saying isn’t very helpful

                    2. Well best of luck in your search then. Using fear to push an agenda seems to be SOP these days. But maybe I’m wrong. Maybe people will start finding ways to bypass the fear and really think about the problems. Maybe the people who rely on the fear will eventually give up their positions. Maybe they’ll die off. Maybe they’ll find it’s more lucrative to change their position and their tactics.

    3. I think you are right, it is unnecessary and should be repealed.

      But, it wouldn’t be so terrible if it were interpreted in a sane, narrow way. It seems to me that the plain reading just means that schools shouldn’t have rules or policies that apply differently to people depending on their sex. And in fact, if it were read in a more reasonable way, it would forbid a lot of the policies that are being implemented because of the insanely broad interpretations that are in use. Especially as it is being applied to sexual assault, it seems like it is being used specifically to discriminate based on sex.

      1. it wouldn’t be so terrible if it were interpreted in a sane, narrow way

        My experience tends to lead me to believe that when a power exists, it will be used in the most extreme way possible.

        like mailer said =

        If punishment is at all proportionate to the offense, then power becomes watered. The only way you generate the proper attitude of awe and obedience is through immense and disproportionate power.”

        Even if you trim it back and try and make it as gentle and toothless as possible, it will be wielded in novel ways that give it the most potential-threat.

        The law created an entire class of bureaucrats who rely on it for their existence. trimming it will cause them to go into overdrive finding previously unexplored angles where they can declare a new “epidemic” of injustice

        see how they’re already trying to expand the definition to “gender” rather than sex? because its a safety hatch. when someone points out that the Male/Female disparity no longer exists… well, then its the CIS/TRANS disparity that becomes the underlying “problem” needing to be solved.

        The only thing that really guarantees an end to the cancerous bureaucracy is to take away their legal justification for existence.

        1. I think you are right.

          Trouble is, most people don’t get what an incentive power is all by itself. Most people seem to see how money corrupts. But many seem to miss how power, even aside from its utility in accumulating wealth, is a big motivator, and seem to assume that these bureaucrats are purely motivated by good intentions (which are also worth jack shit).

  10. Of course, title 9 is where the no gender bathrooms came from – – – – – –

    1. No, that us where facilities segregated by gender and not sex came from. The facilities are still segregated, but on a subjective criteria rather than an objective criteria.

  11. Sexual discrimination per se must be related to the university itself–for example profs giving worse grades to women or using overtly sexist language. Since women now make up more than half of the student population nationwide, it is hard to argue that they are discriminated against. To drag relations between students into this, as if it was part of the university administration, has no basis at all.

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