Washington Monthly - September/October 2015 - 70

priate by any measure, and, if Buchanan's supporters are accurately relaying the basis for her termination, LSU's actions represent a real threat to academic freedom. But nothing in Title IX-nor, crucially, in the Department of Education's recent pronouncements about that statute-required Harvard, Northwestern, or LSU to take the actions that have drawn such criticism. Start with the Kipnis and Buchanan cases. There is nothing in Title IX, its implementing regulations, or the recent government pronouncements that purports to require universities to do what the universities did in those cases. When the students filed a complaint with Northwestern alleging that Kipnis's article and tweet retaliated against them in violation of Title IX, the university was required to investigate it. But the investigation should have been nearly instantaneous. It should have been obvious from the If a university is willing to discipline a student for theft, vandalism, or non-sexual assault without leaving those matters to the criminal justice system, then the school's failure to treat sexual assaults the same way would seem to represent exactly the sort of discrimination that Title IX seeks to prevent. face of the complaint that a published essay and a tweet, from a professor who neither named nor had any power to do harm to the students who complained, could not possibly constitute impermissible retaliation against them under the statute. The university could have, and should have, simply dismissed the complaint without requiring Kipnis to submit to an "inquisition." Similarly, if the facts are as Buchanan has alleged, there is nothing in her conduct that constituted sexual harassment under Title IX. As the Supreme Court has emphasized, laws prohibiting discriminatory harassment do not establish a "general civility code." Rather, the Court has explained that Title IX prohibits in-class harassment only when it discriminates based on sex and when it "is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Repeatedly saying "Fuck no" in a college class70 September/October 2015 room, or telling a single sexually themed joke, hardly comes close to satisfying this standard. Now consider the Harvard sexual misconduct policies. As the Harvard law professor, former federal judge, and legendary feminist litigator Nancy Gertner points out, the fairprocess problems with Harvard's policies don't arise so much from the adoption of the preponderance standard as from the lack of other protections for those named in a complaint. Under those policies, Gertner notes, respondents are not entitled to lawyers or "meaningful sharing of information" regarding the basis for the claims against them. Respondents receive "one week to respond" to written accusations, and they are not entitled to a hearing. Instead, facts are found through interviews conducted by an "investigative team" appointed by the university's Title IX office, with any appeal to the Title IX officer who has supervised the team throughout. And neither respondents nor their counsel are entitled to cross-examine witnesses to test their stories. Harvard adopted this new policy in response to an investigation by the Department of Education, though the university did not specifically ask the department to sign off on that policy. And as Gertner herself acknowledges, the government did not require the university to adopt such a skewed process. In fact, the department's 2014 pronouncement specifically requires a "balanced and fair process that provides the same opportunities to both parties." To be sure, the government has made clear that schools must adopt procedures to address sexual misconduct on campus, rather than leaving the issue to the criminal justice system. But this is not objectionable. Universities routinely employ their disciplinary procedures to address student-on-student misconduct that also might violate criminal laws. That is because the schools recognize that they have an obligation to protect students against threats to their safety and well-being on campus, and that this obligation arises independently of whether the state believes it appropriate to deploy the apparatus of criminal punishment in a particular case. If a university is willing to discipline a student for theft, vandalism, or non-sexual assault without leaving those matters to the criminal justice system, then the school's failure to treat sexual assaults the same way would seem to represent exactly the sort of discrimination that Title IX seeks to prevent. Indeed, it was precisely the widespread refusal of universities to take issues of sexual violence seriously that prompted the Department of Education to step up its efforts to enforce that statute. The OCR's requirement of a preponderance-of-theevidence standard, too, reflects a reasonable accommodation of the various interests present in college sexual violence matters. Where criminal punishment is at stake, it is entirely appropriate to require allegations to be proven beyond a reasonable doubt. The state ought not to be able to deprive a person of his or her liberty, and brand that person a criminal, on the basis of a lesser degree of cer-

Table of Contents for the Digital Edition of Washington Monthly - September/October 2015