The 2016 Republican Party Platform pays special attention to the ways in which Title IX, the federal statute prohibiting gender discrimination in schools, has been used to protect transgender students and victims of sexual assault. The platform deems both uses unacceptable. It frames the protections for sexual assault victims as an extraordinary overreach when, in fact, it simply closes a historical loophole by making explicit an expectation that sexual assault must be treated just like any of the other bad acts that might happen on a college campus.
Sexual assault is a unique type of crime in that engaging in sex acts is normal, frequent, and rarely criminal — it’s only the context and circumstances that tell us whether a criminal assault was committed. The singular thing that distinguishes sex from sexual assault is consent. And consent isn’t just about what one person knew, believed, felt, or chose, it’s also about how those things are communicated to someone else. Consent is explicit, but proving consent (or an absence of it) isn’t always straightforward, and conducting an investigation that is necessarily deeply intrusive can be frustrated by the poor recollections that can follow alcohol and drug use by perpetrators, victims, and witnesses.
It’s one thing to argue that universities need specialized training or staff to conduct investigations and impose consequences well; it’s a very different thing to take the position (like the one on page 35 of the Republican party platform) that they shouldn’t be held accountable for doing it at all:
“The Administration’s distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted before it further muddles this complex issue and prevents the proper authorities from investigating and prosecuting sexual assault effectively with due process.”
It is true that sexual assault is a crime and one that ought to be investigated by proper law enforcement officials. And people who think that law enforcement should do more so that universities do not carry this responsibility alone are also correct. But Title IX does not interfere with the duty of police. Instead it is a complementary process serving a different purpose: ensuring that education institutions do not permit discriminatory policies or practices.
Let me explain.
There is probably no greater discouragement than the threat of violence. Fear of actual physical harm would constrain most anyone’s behavior. The possibility of being left vulnerable to being a victim of a violent crime is a sufficient reason for most people to decide not to do all kinds of things. And for the most part, we’re comfortable allowing our universities to act quickly to keep students safe by suspending or expelling people who they have reason to believe are dangerous. We also expect them to provide the services necessary to support victims of violence on campus so that those students continue their attendance and accrue all of the benefits of higher education.
Because universities already prohibit lots of harms by investigating complaints and imposing discipline (think fistfights, cafeteria food stealing, setting fires in trash cans, stealing cars, and entering buildings after hours), they are subject to an expectation that they will not ignore the impact of a specific subset of harms — harms that are not special or different, just ignored. This is where the discrimination happens: for decades, we allowed a certain type of civil violation to go unremedied, and the protection of Title IX ends that practice. Rather than creating an exception to our ordinary practices, Title IX requires that the historic exception be treated like everything else. That’s what it means to fulfill the charge of Title IX and eliminate discriminatory practices. By carving sexual assault out of Title IX jurisdiction, the Republican platform is the one that overreaches – attempting to undo years of progress towards ensuring that our colleges and universities treat sexual assault just like other crimes.
Title IX requires universities to undertake a timely investigation into complaints of sexual assault and to assign a factfinder to determine whether the allegations are more likely true than not. If they are found to be true by a preponderance of the evidence, the university must impose appropriate disciplinary action. We don’t see any calls to eliminate these procedures for complaints about assault or vandalism or cheating — and if they were already in place for sexual assault, Title IX enforcement would be superfluous. But they aren’t and it isn’t.
This isn’t to argue that implementation isn’t fraught and that some institutions aren’t going too far — but Title IX enforcement isn’t to blame for that. In fact, one might even argue that this administration has given universities too much freedom to manage their procedures, allowing them to create dysfunctional systems that risk mismanaging evidence and compromising student privacy.
If Republicans want to solve this problem while still respecting the intent of Title IX, maybe what they really need is more government.