Title IX has been around since the seventies. It exists to protect victims of sexual misconduct, ranging from harassment to rape. It gives schools the ability to charge the accused with misconduct when there is persistent unwanted behavior or in serious cases such as a single instance of rape.
My school does not distinguish between which behaviors require persistent unwanted sexual advances and which behaviors are serious. But Title IX also adds an extra parameter to the definition. It also allows schools to consider behavior sexual harassment when it negatively impacts a student’s education or creates a hostile learning environment, saying this is discrimination based on gender. This broad definition of sexual harassment gives schools the ability to protect victims, but it prevents the accused from defending his or her innocence.
In most cases, men are the accused. Despite the ability to prosecute, this law does nothing to prevent against the most common cases of sexual misconduct. Furthermore, it does not prevent misconduct from happening in the future, as the worst sanction a school can impose is expulsion, which puts a potential sexual offender on the street.
There are many reasons sexual misconduct accusations reach a school’s administration. Persistent unwanted behavior is the most common, but serious cases happen more frequently than you might think. Because the definition is broad, “persistent” does not have a clear definition. Even if your peers would consider your actions reasonable, under Title IX, with as few as two unwanted communications, an administrator can consider you in violation of their code of conduct, especially if your accuser feels like your actions created a hostile learning environment.
Any physical act is usually more serious. I’ve observed both. I fell for a girl after spending a lot of time together studying just before spring break. I asked her out over text, and she gave excuses as to why she couldn’t meet. In the past, this has been cited as evidence that she didn’t want my advances. She said she wanted to be friends, and I expressed a desire to be friends as well. After spring break, I watched her harass male students, even going so far as to sit on the lap of a guy she just met without asking, creating a hostile learning environment for everyone.
After expressing my discomfort, we grew apart. Two weeks later, the sheriff escorts me off campus and tells me that I can’t come back until my hearing. Another member of our study group, a woman, routinely tells this same girl that she would become a lesbian for her. Expressing that these sexual jokes were unwanted did not deter this female student from sexually harassing my accuser. Despite more obvious sexual misconduct around me, I was the one facing expulsion.
All of these behaviors are potentially sexual harassment. The persistent sexual jokes from one female student to another, the physical contact without expressed consent, and multiple attempts to plan a day to hang out. While there are many reasons misconduct reaches an administrator, it’s primarily male to female harassment that seems hostile.
According to Crossing the Line: Sexual Harassment at School By Catherine Hill, and Holly Kearl, published in 2011 by the AAUW, 48% of students in a representative sample of middle and high school experience some kind of sexual harassment. With such a broad definition, it’s no wonder so many people “experience” it. I showed 20 people the transcripts of our online and text interaction, some part of the study group where harassment regularly took place, some were strangers. None of them considered any of the 9 pages of transcript reasonable evidence that my behavior was either serious or persistently unwanted. Witnesses to our interactions reported the same results.
It’s clear that despite the hard line the federal government is forcing schools that receive federal funding to take on sexual harassment and assault, this doesn’t prevent sexual misconduct under the school’s definition; it only deters people from intentionally sexually harassing others or assaulting others.
The problem at the root is not satisfactory punishment. Advocacy groups continue to object when an accused student is allowed to remain on campus or is acquitted of the charges. The Washington Times, for example, described the situation Columbia University faced when Emma Sulkowitz began carrying around a mattress to air her grievance that “the student she accused of rape was not punished.”
Facing a hearing, two months from my degree (worth about $8,000 dollars so far), I face expulsion. This means I don’t graduate, I don’t finish the semester in good academic standing despite being an honors student with a 3.6 GPA, despite having to drop classes because I’ve been accused in the past, and that means I can’t use the credits I’ve earned to transfer. I’d have to start over again, and I just don’t have that kind of money.
I consider this a violation of my civil rights as I’m considered guilty before I even walk into a hearing. I’ve had two before, and this third one will be worse because they’ll cite my history as evidence of persistent unwanted behavior, meaning that they don’t need persistence with a single girl, they just need something similar to what I’ve done before.
While rape is detestable, and sexual harassment creates hostile learning environments, and schools should give victims the ability to prosecute, people lack the understanding that sexual harassment is not based on the intentions of the accused, and that it is not just serious cases such as derogatory terms like calling someone a slut, or stalking. Even telling someone sexual interest or asking personal questions about their sex life can be harassment according to my schools student handbook.
Unfortunately, I’m prevented from linking to the code of conduct or naming the school by a retaliation clause.
Students don’t believe that they’re doing anything wrong when they call someone a pet name, when they joke about sexuality, or when they ask about personal details in general conversation. Cited in my last hearing was calling a girl “Kit Kat” as a way to remember her name, asking about her ex-boyfriend, and asking her on a date multiple times – even though she said I could call her kit-kat, even though she agreed to go on a date with me, and even though she told me that she didn’t want to go on a date with me because she wanted to get back together with her ex-boyfriend.
They said that a pet name was “derogatory,” that I persistently made sexual advances even though she didn’t want me even though I was seeking clarity, which is something they teach in their listening course. I didn’t know I did anything wrong and felt I was actually doing something right. Now I see examples of harassment everyday. Even though I’ve started to tell people they’re misbehaving, they don’t believe they could face expulsion or even civil charges.
On the current course, the school could continue to increase the severity of sanctions and have teachers actively look for evidence of harassment; however, that would marginalize half the student population. Schools will not risk violating the right citizens have to access education of so many people.
A more reasonable option is to create standard code of conduct. This would outline behavior not just describe unacceptable behavior but describe a courtship process and how to handle rejection and reject unwanted advances. For example, courtship would require a formal request issued to the desired date and an impartial witness. Dates would have clear guidelines and a chaperone.
Should both parties request a date without a chaperone, then the school cannot accept sexual harassment claims unless the accuser issues a warning to the one harassing her and an impartial witness, such as a teacher, faculty member. To file a harassment claim without issuing a formal warning, a victim would need to file a civil suit. This would protect future victims, and it would it would afford the accused due process.
To read more about due process concerns here are two articles. “Five harsh realities of sexual assault in school,” and “Expulsion Presumed/No due Process.” The code of conduct would reference alcohol in date guidelines, making sexual assault more clear, and (as formal courtship requires a witness) it reduces the likelihood that consent is questionable, and that knowledge a person cannot give consent is questionable such as with disability.
This code of conduct could be easily distributed and prominently displayed around campus. Students would not glance over it thinking that they would not sexual harass or assault others, and it would provide a fair and objective measure to judge sexual misconduct. Protecting both men and women, preventing many future misconduct due to ignorance, and giving victims the same strength to prosecute assailants without ambiguity causing civil rights violations and due process violations.
If you’re interested in learning more, here is the transcript of a panel of some of the leading activists against title IX to talk more about why this is this is a problem. It covers:
- Lower Standard of Evidence
- No cross examination
- No mens rea (reasonable person clause)
- Ambiguous cases of consent
- False rape accusations