by Ben Cohen at The American Thinker
The Foundation for Individual Rights in Education, along with Minding the Campus, wrote extensively about the “Dear Colleague letter” sent by Russlyn Ali, the Department of Education’s assistant secretary for civil rights, to America’s various educational institutions. The letter threatened loss of funding if these institutions did not comply with their title IX obligations, which would be title IX of the 1972 educational amendments. Educational institutions which receive federal funds may not discriminate on the basis of sex, and an environment where people are frequently the targets of sexual harassment is considered a hostile one, and therefore discriminatory against the targets based on their gender.
While F.I.R.E. and Minding the Campus have done yeoman’s work in bringing this matter to people’s attention, they have missed the larger problem with the “Dear Colleague” letter. Treating rape as a form of sexual harassment trivializes rape, placing it in the same category as off-color jokes and unwanted sexual advances. Furthermore, colleges are wholly unequipped to investigate and adjudicate rape cases, something the letter encourages them to do.
The most important thing for readers to understand is that sexual harassment is entirely legal; on the other hand, sexual discrimination is illegal. As stated earlier, sexual harassment creates the hostile work environment, but it is the company or school which is at fault, not the sexual harasser. Sexual harassment is poorly defined because the law targets institutions not individual harassers. An institution’s guilt hinges on whether the institution is culpable of maintaining a hostile, discriminatory environment, (a compliance expert could give a more precise account of an institution’s responsibilities).
While the frequent occurrence of rape in a workplace or school would certainly create a hostile environment, calling rape “sexual harassment” would be like calling school shootings “classroom disruptions.” Lumping in rape, a serious felony, with inappropriate sexual humor and adjudicating it in the same manner as tardiness or student plagiarism trivializes rape. People don’t go to jail for making inappropriate jokes or unwanted sexual advances. Rape should not be classified as “on a spectrum of behaviors” with these things, as the letter does.
While a school’s internal disciplinary system may be a more comfortable place for a rape victim, adjudicating rape claims undermines the criminal process and the rights of a defendant. In cases where a parallel criminal investigation is ongoing, a defendant can’t speak at the school’s tribunal without undermining their Fifth Amendment protections. Further, it would contaminate any witness testimony because the witnesses would have heard the testimony of the other witnesses at the school’s disciplinary proceeding. This tainting of the testimony would create doubt, and in a criminal case doubt favors the defendant. These tribunals would almost certainly make it harder to prosecute rapists in criminal court, and incarcerate them.
Minding the Campus and F.I.R.E. have focused their criticism on the 50.1% standard and overlooked the problem of schools attempting to resolve rape complaints. While this parallel system has led to miscarriages of justice such as that involving Caleb Warner, whose accuser was charged with filing a false claim, but who was still suspended for rape. The less obvious problem is the trivialization of rape and the subverting of our legal process. Punishing rape with school suspensions instead of jail is not a favor to either women or rape victims.