Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE

This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms?