Civil libertarian feminists have always been a political minority, but these days we seem on the verge of extinction. Reviewing the charges of sexual harassment underlying the Title IX complaint by a group of Yale students and alumnae, I can’t find feminism – at least, not if feminism includes independence, liberty and power for women. Instead I find femininity: the assumption that women are incapable of fending for themselves in the marketplace of epithets or ideas, the belief that women are rendered helpless by misogynist speech and the sexist tantrums of their male peers.
The Yale group’s confidential complaint to the Department of Education’s Office for Civil Rights (OCR) was made under Title IX, a 1972 amendment to the Civil Rights Act prohibiting sex discrimination in schools receiving direct or indirect federal funding. The complaint reportedly includes testimony about sexual assaults, but the hostile-environment charge against the university rests as well on a litany of complaints about offensive exercises of First Amendment freedoms. A December 2010 draft complaint letter, obtained by the Foundation for Individual Rights in Education (FIRE), focuses on these ‘incidents’. In 2006, a group of frat boys chanted ‘No means yes, yes means anal’ outside the Yale Women’s Center. In 2010, a group of fraternity pledges (aspiring members of a fraternity) repeated this obnoxious chant outside a first-year women’s dorm. In 2008, pledges surrounded the Women’s Center holding signs saying, ‘We love Yale sluts’. In 2009, Yale students published a report listing the names and addresses of first-year women and estimating the number of beers ‘it would take to have sex with them’.
The only incident of alleged harassment cited in the draft complaint that does not involve pure speech is an act of vandalism. In 2004 and 2005, fraternity brothers stole t-shirts featuring the stories of ‘rape survivors’ from a Take Back the Night project and photographed pledges wearing the t-shirts. But, perversely, this theft – to which free speech is irrelevant – provokes the only expression of concern for it: ‘To steal these t-shirts is akin to stealing the voices of the victims’, the draft complaint melodramatically asserts – as if the victims were prevented from repeating and reclaiming their stories. If the t-shirt theft was intended to censor women, its success depended on their willingness to respond by censoring themselves.
What accounts for such feminine timidity, this instinctive unwillingness or inability to talk or taunt back without seeking the protection of university or government bureaucrats? Talking is apparently beside the point. ‘I just want to be able to walk back to my dorm at night without hearing all this crazy stuff from these guys’, one student complains. I sympathise (I was a young woman once, too), but ‘hearing crazy stuff’ from people in public is part of life in a free society, a society in which you enjoy equal rights to say crazy stuff.
Putatively progressive feminists might agree, if only they regarded women as equal to the task of talking back, if only they distinguished between men who ‘say stuff’ about women and men who ‘do stuff’ to women. In the feminist view reflected in the Yale draft complaint, the misogynist ranting of some undergraduate men (perhaps a relatively small percentage of them) is not speech. It’s a series of ‘dangerous’, ‘sex-discriminatory threats’ that ‘intimidate’ and ‘terrorise’ women, constituting a hostile environment (or ‘rape culture’) that causes sexual violence.
That simplistic, practically hysterical anti-libertarian approach to offensive speech appears to be shared by the Obama administration. OCR has initiated an investigation of alleged civil-rights violations at Yale, and, coincidentally, on 4 April, it issued a ‘Dear Colleague’ letter to schools, colleges, and universities nationwide, clarifying their obligations to prevent and address sexual harassment. OCR’s letter conflates harassment and rape. It defines sexual harassment as ‘including’ sexual violence and ignores the conflicts between sexual-harassment regulations and free speech, or, in public schools, the constitutional limits on regulating ‘offensive’ speech. Given OCR’s expansive and potentially repressive approach to punishing and preventing ‘bullying’, it’s not surprising but still distressing to find no concern for speech in its letter on harassment.
The only nod to civil liberty in OCR’s letter is a reminder that students accused of sexual harassment (including sexual violence) should be accorded due process. Indeed, ‘(p)ublic and state-supported schools must provide due process to the alleged perpetrator’ – but not too much due process, it seems: ‘However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.’ This suggests, oddly and ominously, that the statutory rights of the accuser trump the constitutional due-process rights of the accused.
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Generally, the OCR letter displays much more concern for the sensitivities of accusers over the rights of the accused. Schools should, for example, separate complainants and alleged perpetrators while investigations are pending and, in doing so, they should ‘minimise the burden on the complainant’. Why not also minimise the burden on the alleged perpetrator? The Obama administration, like the administrations of so many colleges and universities, implicitly approaches sexual harassment and sexual violence cases with a presumption of guilt.
Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; ‘kangaroo courts’ are common, and OCR’s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating’. (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.
I don’t know the ages of Obama’s OCR appointees, but they seem to be operating under the influence of the repressive disregard for civil liberty that began taking over American campuses nearly 20 years ago. As FIRE president Greg Lukianoff remarks, students have been ‘unlearning liberty’. Concern about social equality and the unexamined belief that it requires legal protections for the feelings of presumptively vulnerable or disadvantaged students who are considered incapable of protecting themselves has generated not just obliviousness to liberty but a palpable hostility to it.
Sad to say, but feminism helped lead the assault on civil liberty and now seems practically subsumed by it. Decades ago, when Catherine MacKinnon, Andrea Dworkin and their followers began equating pornography with rape (literally) and calling it a civil-rights violation, groups of free-speech feminists fought back, in print, at conferences, and in state legislatures, with some success. We won some battles (and free-speech advocates in general can take solace in the Supreme Court’s recent decision upholding the right to engage in offensive speech on public property and public affairs). But all things considered (notably the generations of students unlearning liberty), we seem to be losing the war, especially among progressives.
This is not simply a loss for liberty on campus and the right to indulge in what’s condemned as verbal harassment or bullying, broadly defined. It’s a loss of political freedom: the theories of censoring offensive or hurtful speech that are used to prosecute alleged student harassers are used to foment opposition to the right to burn a flag or a copy of the Koran or build a Muslim community centre near Ground Zero. The disregard for liberty that the Obama administration displays in its approach to sexual harassment and bullying is consistent with its disregard for liberty, and the presumption of innocence, in the Bush/Obama war on terror. Of course, the restriction of puerile, sexist speech on campus is an inconvenience compared to the indefinite detention or showtrials of people suspected of terrorism, sometimes on the basis of unreviewed or unreviewable evidence. But underlying trivial and tragic deprivations of liberty, the authoritarian impulse is the same.
Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) This is an edited version of an article that originally appeared at theatlantic.com.
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