Too often we see college students plastered all across the media for wrongful allegations of sexual assault of a fellow student. Be it a male or a female, the American college campus has over-regulated the freedom of sexual expression, even if you agree with certain acts or not.
In fact, the overall idea of engaging in any form of relationships while in college, may it be sexual or not, has been deteriorated. Moreover, because of the creation of a climate of fear associated with sexual misconduct codes on campuses across the country, a bureaucratic monstrosity has grown at levels where government must be involved, even in the bedroom.
Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen termed the dawning of the “college sex bureaucracy” in an op-ed for The Chronicle of Higher Education. Both argued as the main premise of the op-ed that in the crusade for combatting sexual violence in the public policy arena the agenda has been distorted and altered irreparably.
“Often with the best of intentions, the federal government… has presided over the creation of a sex bureaucracy that says its aim is to reduce sexual violence but that is actually enforcing a contested vision of sexual morality and disciplining those who deviate from it,” Gersen and Gersen argue.
The ever-growing influence federal statutes and agencies have on college campuses was, also, deemed disconcerting, in addition. “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”
Thus, mandating that college officials be “bureaucrats of desire,” because of the overreaching authority of the government, deprives students the individual right to uphold personal responsibility for their sexual conduct.
Federal regulations and statutes, and the agencies that enforce them, cock-up cases of alleged sexual misconducted through a inequitable application of Title IX regulations to cases, regardless of how well-intentioned the measures are. The evolution of the Title IX provisions through decades of legislating from the executive and judicial branches resulted in a body of regulations that is murky and vague.
From the controversial U.S. Department of Education Office of Civil Rights (OCR), the primary agency tasked with interpreting and enforcing Title IX, the anti-discrimination measure prohibits all discrimination based on the result of sex through a plethora of ways. The most popular of ways, though, derives from a “Dear Colleague” letter, released by OCR in 2011. The letter determined that Title IX applies on the college campus in the fashion that the college, as an institution, is discriminating against a student if “sexual harassment” (verbal, nonverbal, and sexual violence etc.) takes place. Essentially, the college is held liable for a hostile environment.
Because of this interpretation by OCR, sexual harassment and misconduct codes on most college campuses are dictated by Title IX rulemaking authority. OCR, also, has been inconsistent on stances of mandating Title IX policy implementations. For example, Title IX mandates that the institution must investigate all instances of sexual discrimination; but, guidelines for investigations are varying and have brought forth a whole other set of problems. Problems ranging from lack of due process for the accused in the adjudication of non-criminal allegations at the campus level to racial discrimination appearing in the proceedings of investigations into cases. OCR Forcing a preponderance of evidence in sexual misconduct cases and investigations on schools also poses a whole other world of issues and a has provided for an environment commonly perceived bias against some male accused respondents in such cases.
Worst of all, though, is the fact that Title IX can be used to circumvent the First Amendment rights of the accused. In the spring of 2016, the Department of Justice asserted, via regulatory guidance, that the University of New Mexico improperly defined sexual harassment. DOJ’s amended definition of sexual harassment is flatly defined as, “unwelcome verbal or physical behavior, which is directed at persons because of their … sex … when these behaviors are sufficiently severe or pervasive to have the effect of unreasonably interfering with their educational experience, working conditions, or student housing by creating an intimidating, hostile, or offensive environment.”
Because of this, DOJ puts institutions in the place of having to break constitutional rights or risk federal financial support, per the mandates that all federal regulations for higher education must be enforced or no funding will be provided. The simplest thing, like a harmless, sexually geared joke with a classmate, can trigger a sexual misconduct allegation. Affirmative consent is a failure, as well. The entire idea of affirmative consent puts blame on absolutely everyone who engages in “heat of the moment” sexual situations, thus is nearly impossible to enforce. Regardless, the OCR, in 2013, mandated that “sexual harassment” must have a broader definition, based on guidance from the agency to the University of Montana.
The last component of the debate, which was also brought up in the Gersen and Gersen op-ed, is whether or not President-elect Donald Trump will reform the “sex bureaucracy.” The new administration must wither away at this policy and legal environment and avoid utilizing this legal mouthpiece to sway their own view of sexual morality on campus.
It is an example of unconstitutional executive overreach, a violation of individual rights, and a politically correct implication of natural human function.