Sunday, October 26, 2014

The Title IX Mess

I have refrained from commenting on Harvard's Sexual and Gender-Based Harassment Policy because I figured the University was just doing what it had to do. If the federal government announces that universities have to do X or risk loss of their federal funding, they should, almost always, do X. The rare cases of resistance have had mixed results. Years ago, Brown University resisted a Title IX complaint having to do with what exactly it meant to offer equal athletic opportunities to men and women -- and lost. On the other hand, MIT resisted the antitrust consent degree the other members of the "Overlap Group" signed -- and won. In this case it seemed to me likely to be very risky to resist. At some point prudent fiduciaries have to instruct the executive to settle up with the feds and save their litigation to resist incursions that are closer to the core of the institutional mission.

That said, I have thought, since the policy was announced, that it was a disaster to any sense of justice in the American tradition. What has happened here (I wrote about this in EWAS) is that frustration has mounted over the low conviction rate in charges of sexual assault, typically peer sexual assault between drunken undergraduates with no witnesses other than the principals. Rape being a serious felony, Harvard and most other institutions have long observed something like the standard in the criminal justice system, that a pretty high level of certainty should be required before someone is declared a rapist. Universities have never been required to do that, since they are not sending anyone to prison, but it has always seemed the right thing to do given the social consequences of labeling someone a rapist.

Of course that resulted in low conviction rates, which have long been a source of frustration for victims and their advocates--in universities just as it is in the "real world." What has happened is that, for fundamentally political reasons (with Joe Biden hugging sexual assault victims and all), the executive branch of the federal government has re-cast rape as a civil rights violation, and insisted that "equity" here means that the two parties have equal standing in colleges and universities receiving federal funds. Findings must be on a "preponderance of evidence" standard -- essentially a 51-49 standard, rather than a beyond-a-reasonable-doubt standard. If one party can appeal the finding of the college judiciary, the other side can too. And so on. More of the guilty will most certainly be convicted in this way -- and more of the innocent too. This isn't what we used to think "fairness" meant -- it used to mean giving an individual defendant a fair shake against the overwhelming power of the prosecutorial entity. If anyone needs a refresher, go look at what is happening in Hong Kong, where the city is fighting about which of the "two systems," democratic or authoritarian, will ultimately govern it.

A diverse group of Harvard Law School faculty protested Harvard's Title IX policy, arguing in essence that Harvard caved too easily to the feds. The new policy involves measures, they say, that "are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." That last phrase is important. What exactly Title IX, the law, requires is very murky -- see Why Colleges Are on the Hook for Sexual Assault - Students … for a good explanation of how scope of the law has expanded over the years far beyond anything the enacting legislators anticipated. What surprises me is the statement that the policy goes beyond anything that regulations require, and that Harvard "decided simply to defer to the demands of certain federal administrative officials." Is that right? We know that managing risk is among the highest priorities of Harvard's governing boards. Did they really instruct the university administration to placate a handful of federal bureaucrats?

The Law School letter is worth reading. But I want to point out an inherent contradiction in Harvard's policy that has not been highlighted to my knowledge: The contradiction between the obligation not to allow a "hostile environment," and the obligation to protect the right to free speech. Here are the relevant passages from Harvard's policy. On what's a "hostile environment":
Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature, when: (1) … [quid pro quo]; or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities (hostile environment).
… verbal, nonverbal, graphic, or physical conduct may create a hostile environment if the conduct is sufficiently persistent, pervasive, or severe so as to deny a person equal access to the University’s programs or activities. Whether the conduct creates a hostile environment may depend on a variety of factors, including: the degree to which the conduct affected one or more person’s education or employment; the type, frequency, and duration of the conduct; the relationship between the parties; the number of people involved; and the context in which the conduct occurred.
Clear as mud. On free speech:
 Nothing in this Policy shall be construed to abridge academic freedom and inquiry, principles of free speech, or the University’s educational mission.

I have no idea how to reconcile those two passages. In America, under the First Amendment, we tolerate all kinds of offensive and odious speech, because we fear that the inhibition of obnoxious speech by empowering the government to regulate it would not be worth the price in restricting free expression. Just as we require a high standard of proof for crimes because we judge that it is better for the government to have to act with one hand tied behind its back, and let some bad guys walk free, than to risk over-reach by a more unconstrained federal prosecution.

It may be that we have to do as Harvard's policy states, outlaw "hostile environments" even with the exquisitely vague definition of what they are. It may even be exactly the right thing for us to do. But how can we, with a straight face, state that outlawing hostile environments in no way entails a restriction on what people can say? The First Amendment allows all kinds of hostile speech, as long as it falls short of actual threat. The Harvard policy outlaws hostile environments, including hostile verbal environments. Let's be honest, or risk having the whole policy dismissed as a political statement. We're outlawing the whole band of speech between hostile and threatening, aren't we?

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