Critics of Title IX are right to note that it suffers from a walloping case of mission creep. The latest official reiteration of Title IX, found in the “Dear Colleague Letter” (DCL) from the Department of Education in 2011, almost makes their case for them, by declaring schools to be potentially liable under Title IX for student-on-student sexual harassment initiated off school grounds. What is less noted is that interpretation of Title IX has trended this way almost from its inception. In the incendiary collision of sex, political correctness, and administrators on campus, Title IX is increasingly overshadowed by regulations even more aggressive and intrusive than Title IX itself.
Consider the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. Its elasticity outrivals that of Title IX. It began as a measure simply to require public and private colleges and universities participating in federal student-aid programs to disclose to the public straightforward campus-safety information, including security policies and crime statistics in tandem with its graduate rates (especially of student-athletes).
As of July 1, 2015, however, the Campus Sexual Violence Elimination Act (SaVE) amendment to the Clery Act will require policing and reporting of any student who, on a public (non-university-owned) sidewalk, experiences “emotional distress” directly or indirectly because of another student. The amended Clery Act will also require a campus to provide awareness programming in the event of all such instances.
We are currently somewhere around the sixth iteration of the Clery Act. The expansion of the act’s regulatory geography began in earnest with its first modification, in 1992, when it imposed on campus administrators “certain basic requirements” — including publishing institutional policy statements regarding sexual assault — for handling incidents of sexual violence and emergency situations.
Expanded were the definition of “campus” and the crime categories to be reported (to include arson, “sex offenses” rather than simply “rape,” and every instance of a person’s being “referred for campus disciplinary action” for liquor-law or drug violations, over and above any arrests relating to the same). Instead of reporting one “crime” for, say, an underage drinking party attended by 20 people, a campus now had to report 20 separate crimes. A campus crime log, easily available to the public, was mandated. Subsequent amendments in 2000 and 2008 added provisions dealing with registered-sex-offender notification, campus emergency notification, and response procedures. Other provisions protected crime victims, whistleblowers, and “others” from retaliation.
Also by 2008, Congress added detailed stipulations about “hate crimes” to the Clery Act’s jurisdiction. Campuses were now to report, as well as have systems in place to address, crimes including murder, sex offenses forcible or non-forcible, robbery, aggravated assault, burglary, motor-vehicle theft, manslaughter, arson, larceny theft, simple assault, intimidation, and destruction, damage, or vandalism of property in which “the victim is intentionally selected because of his or her actual or perceived race, gender, religion, sexual orientation, ethnicity, or disability.” The systems they are required to have established include awareness and educational programming, ostensibly to prevent the criminal activity, and separate educational and therapeutic programming to follow in the wake of a criminal occurrence.
Curious about what sex-related territory Title IX will next tackle? Look no further than the latest amendments to conditions on federal student aid under the Violence Against Women Act.
Starting July 1, campuses will be liable for investigating and reporting instances of dating violence, domestic violence, and stalking. Perhaps that sounds reasonable enough. But under the new regulations, “stalking” as a crime seems immensely easy for most of us unwittingly to commit, since by its new definition it occurs on the second instance that someone’s direct or indirect presence causes feelings of emotional distress to the reporting victim. (As if on cue, campuses are apparently experiencing an underreported stalking epidemic.) From the new rules:
Stalking:
(i) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to —
(A) Fear for the person’s safety or the safety of others; or
(B) Suffer substantial emotional distress.
(ii) For the purpose of this definition —
(A) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
(B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
(C) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
(iii) For the purposes of complying with the requirements of this section and section 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
“Substantial emotional distress” should not be dismissed as make-believe. But it becomes farcical when campus safety officers must conduct an official criminal investigation into an instance of “emotional distress” that the reporting victim experienced as a result of crossing paths with the offending other on only the second time in the previous eight months.
What constitutes “campus geography” (or “Clery Geography,” as it is sometimes called) includes a school’s campus (“any building or property that an institution owns or controls . . . that directly supports or relates to an institution’s education purposes,” including properties “students use for educational purposes that are controlled by another person, such as a food or retail vendor”), some non-campus buildings or property (“owned or controlled by a recognized student organization”), and some public property (“examples include sidewalks, streets, and parking facilities”). Now, if a group of students takes a class-related trip to a museum or concert or to study architectural ruins abroad, those spaces and their surrounding areas fall under the school’s “geography,” influencing everything from liability to the school’s crime statistics.
In terms of sheer time and staff time colleges must now dedicate to comply with such legal stipulations, the Clery Act is king of the Title IX hill.
A captain of campus security at a small residential university recently told me that, to be in minimum compliance with the Clery Act, his officers must perform or keep track of over 77 specific items or tasks every day. These range from fire-safety inspections to recording elevator-video logs. They are in addition to the responsibility to conduct a thorough official investigation of something like “criminal stalking” when a person reports the alleged crime. Every bit of data must be recorded and made publicly available — though that later stirs up a host of other legal complications, owing to the separate legal requirements of such federal regulations as the Family Education Rights and Privacy Act (FERPA), the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the Violence Against Women Act (VAWA), Title IX, Title VII, and Title IV.
Colleges and universities must keep track of this plethora of policies and procedures in addition to separate administrative hearings or judicial proceedings and any investigations by the police, the Department of Education, or the Department of Justice. Schools hire education, labor, and civil-rights lawyers, coordinators, and compliance officers — often staffing whole departments headed by a vice president of compliance. Title IX requires campuses to appoint Title IX coordinators and Clery Act compliance officers, who must attend costly annual training sessions with certified organizations.
Small wonder, then, that schools often impose on themselves strictures and compliance requirements over and above what the federal government actually asks. Perhaps unwittingly, school officials are more responsible for pushing strictures and legislation forward than are third-party activists. And with today’s compliance officer transitioning to the better pay of tomorrow’s consultant, a cycle is established, with the regulatory interpretation as well as the regulations themselves becoming ever more expansive.
To this bureaucratic quagmire add a little human laziness, gullibility, ignorance, stubborn personal agendas, and sprinklings here and there of actual malice, and it is not hard to see how even well-intentioned people can contribute to the problem of using regulations as political weapons. Nor is it hard to understand why actual justice done is an increasing rarity. The latest expressions of Title IX contribute to the shrinking freedom of the college campus today, but Title IX itself is only the most conspicuous cause of intrusion by campus bureaucracy into personal sexual matters. It is not the only cause, and it is far from being the most powerful.
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