Title IX, Legal Rights, and Language

       On Sept. 7, Education Secretary Betsy Devos gave a speech at George Mason University on Title IX, a portion of the Education Amendments passed into law in 1972 that prohibits sex-based discrimination in higher education. The element of Title IX that Devos addressed in her speech was how it pertains to sexual harassment and violence. Specifically, her comments were a reaction to the “Dear Colleague Letter”, a non-binding directive from the Obama Administration in 2011 that outlined guidelines and procedures for school administrators in dealing with cases of harassment and assault. While Title IX does not directly speak to issues of harassment and violence, it has nevertheless had direct influence on schools in this area because discrimination is interpreted broadly enough to include such cases. Put simply, the idea behind this interpretation seems to be this: sexual harassment or violence interferes with the ability of students generally (and victims specifically) to participate fully in their education, which they have a right to, and thus if there are no preventive measures or means of recourse given to students, then discrimination has or is occurring and rights are violated. Devos says: “Title IX has helped to make clear that educational institutions have a responsibility to protect every student’s right to learn in a safe environment and to prevent unjust deprivations of that right.”

      If all of this seems like a muddled and inadequate basis for college administrators adjudicating cases of sexual misconduct, that’s because it is. And as Devos points out, the current guidelines suggested in the Letter, along with a lack of clarity surrounding how exactly to comply with Title IX, has led to bad situations for both accused and victim. The following situations have all happened: 1): a student expelled for an alleged assault (based on third-party hearsay) despite the fact that the girl he supposedly assaulted is adamant it never even happened: 2): a victim who is told by her university that she will need to prosecute the case herself (summon witnesses, submit evidence as exhibits, etc..) in order for justice to be served: 3): a student investigated and disciplined while never actually been informed as to what charges were brought against him. Thus, while Devos is clear that “acts of sexual misconduct are reprehensible, disgusting, and unacceptable,” she also argues that “the system” as it currently stands (having been informed by the Dear Colleague Letter) isn’t actually working: for everyone’s sake we need to do better.

      I hope that we will indeed be able to clarify Title IX guidelines and help colleges better navigate these issues. But I have concerns with the language of Title IX as it pertains to these issues. I do not think it, nor Devos’ speech, gives us a robust enough vocabulary to shape our moral imagination. Assault is not, in its essence, a violation of some social contract that is signaled by lack of consent, as if what it means to be an embodied person is simply that I am a carrier of legal rights, as if the reason assault is bad is because it violates these legal rights. Of course rape breaks the law, is a breach of every school’s code of conduct, and violates legal rights given to us in our democratic nation. And of course we should pursue social justice (including legal recourse). But if we do not understand that the wound the victim bears is far deeper than can be addressed in the language of social/legal status and that the perpetrator has not just breached social mores but has committed an evil act, then we have not adequately understood the issue. Law can say: “you have transgressed against agreed upon public behavior:” it takes a deeper, morally-informed language to say: “you have sinned.” Likewise, law can say “you have disregarded the rights of this person”: it takes that deeper language to say: “you have wounded a person.” Just as importantly, the law can say “your rights have been disregarded” but the deeper vocabulary says “you have suffered as a person, your suffering is legitimate, tragic, and, in itself serves as a moral indictment against the one who has wronged you.”

      I realize that in our public dialogue, we don’t often agree enough on religion or philosophy to share a specific moral vocabulary. For example, there are many who would argue that the language of “sin” has no place in these discussions. Perhaps the language of rights is the only common denominator that we can all agree upon. But if this is the full extent of our moral vision, we have an impoverished vision. As a community here at Eastern University, I would hope that we would not need to resort to the language of rights, contracts, consent (as the only necessary condition), and lawsuit in our pursuit of right relationships with one another (social justice) – although, crucially, if we must, we must. But I hope and pray that our moral vision runs deeper, that it is more distinctly Christian. I hope we see our relations to others not primarily through the lens of social norms, legal codes, and administrative policy, but rather through a Christ-informed ethic. And as Christians, I would ask that we seize every opportunity available to us to justify rights-language by anchoring it not in socially-constructed norms but rather in the Gospel: created in the image of God, we are precious, loved, full of dignity. And as image-bearers, we have absolute, unchanging moral obligations to everyone else precisely because they are image-bearers too.

      Source: Washington Post

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