by James A. Bacon
When Congress enacted Title IX in 1972, the intent of the federal law was to ban discrimination against women at higher-ed institutions receiving federal funds. The application of the law morphed over the years to require equal funding of women’s athletic programs, ban “hostile” workplace environments, and in 2011 under Obama administration administrative guidance, root out sexual violence.
In a new report published by the National Academy of Scholars, “Dear Colleague: The Weaponization of Title IX,” Teresa Manning documents how at James Madison University, George Mason University and Virginia Tech, among other higher-ed institutions, the law is no longer applied to equal access issues, which are no longer a concern, but is used to advance a feminist agenda.
“By [President Obama’s] stroke of a pen, an educational equal access law was transformed into a campus sex crimes law,” writes Manning, a pro-life GMU law professor who was appointed in 2018 to a post in the Trump administration’s Office of Population Affairs.
Manning summarizes how Title IX law has been applied:
Suddenly the conflation of sexual assault with sex discrimination seemed unquestionable, and fighting sexual assault on campus became a top priority at the highest political level … Few understood that “assault” had been redefined to include sexual relations that seemed consensual at the time but were later regretted. In short order, the campus Title IX office felt entitled to involve itself in any imperfect student sexual encounter; that is, it became the campus sex police.
Title IX offices, usually staffed by unapologetic feminists, have has become a tool for reshaping social mores, writes Manning. “Title IX offices now hardly ever mention ‘discrimination’ or equal access to education. Attention is focused on sexual misconduct, sexual politics, and re-education.” Proceedings short-change due-process protections such as the presumption of innocence, the right to respond to accusations, and the right to confront one’s accuser.
Manning’s essay, though grappling with national issues, uses James Madison, George Mason, and Tech as case studies to show how the Title IX has been redefined by campus feminist sensibilities. Here follows lengthy excerpts from her report with my occasional interpolations.
The evolution of Title IX policy at JMU
James Madison’s Policy 134029 is called “Sexual Misconduct” and stated plainly in its first provision on Purpose: “One form of sex discrimination is sexual misconduct.” This statement makes no reference to access as the central issue, the way the Davis Court did. In fact, the 24-page policy never uses the word access in relation to educational programs or opportunities. JMU therefore considers all sexual misconduct to be discrimination based on sex, a quiet but enormous expansion of behavior deemed discriminatory. In the same vein, the Policy’s Definition section explains “sex discrimination” as follows, “To take an adverse action or provide unequal treatment based on a person’s sex, sexual orientation, gender or gender identity when such action deprives a person of a privilege or right… or otherwise adversely affects the person.” Sex discrimination specifically includes instances of sexual misconduct of any type.28
Again, instead of preserving educational access, the policy asserts that “sexual misconduct of any type” now constitutes sex discrimination. This immeasurable expansion virtually guaranteed that the university’s Title IX Office would become what many now call the “campus sex police.” What’s more, instead of the Davis standard of denied access, the definition of sex discrimination at JMU included “adverse action” based on a person’s sex (or identity, or orientation), etc. that may “adversely affect the person.” To state the obvious, adversely affect is well beyond denied access.
JMU’s hostile environment definition then nods to Davis creating the impression that the Policy is observing a Supreme Court standard, even as the Policy goes beyond the legal limit. That definition reads, in relevant part, as follows:
“A hostile environment may be created by oral, written, graphic or physical conduct that is sufficiently severe, persistent or pervasive and objectively offensive that it interferes with, limits or denies the ability of a person’s ability [sic] to participate in or benefit from the institution’s educational programs, services, opportunities or activities…”29
The definition sounds similar to the one in Davis (“sufficiently severe, persistent or pervasive”) except it uses the phrase “persistent or pervasive” and includes “oral” conduct (speech), raising free speech issues. The concept of denied access has become “interferes with” or “limits,” both of which broaden the type of conduct that can trigger Title IX while sounding like the Supreme Court standard, and even while many other provisions have ignored the Court altogether.
Again, while schools are free to ban any conduct they deem problematic (in accordance with laws), they are not free to claim Title IX bans such conduct — but there is no mistaking that Policy 1340 is, nevertheless, enforced by JMU’s Title IX Office as if everything therein were a Title IX concern. The November 8, 2019 page of “Title IX at JMU” begins “The Title IX Office at JMU receives, responds to and address [sic] all reports of sexual misconduct involving members of the university community.”
In sum, JMU’s Title IX Office now involves itself in every allegation of sexual misbehavior, however slight, even if no claim is made about an effect on educational access.
The evolution of Title IX policy at GMU
George Mason University’s Policy Number 1202 forbids “conduct [that] occurs outside the context of [the University]… but has continuing adverse effects on, or creates a hostile environment for Students…” Hostile environment harassment is then defined as: “Unwelcome conduct based on Protected Status that is so severe, persistent or pervasive that it alters the conditions of education, employment or participation in a University program or activity, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating or abusive.” [emphasis added]
Again, while the definition initially sounds like the Davis standard when it states “severe, persistent, or pervasive” (though even this is a variation on the original Davis wording, which was “sufficiently severe, pervasive and objectively offensive”), the word “access” does not appear, much less the idea that such access is denied; and, “objectively offensive” has been dropped. Instead, the Policy introduces a new idea and a new standard when the definition mentions not denied access but altered “conditions of education,” an almost limitless category. The Policy then pretends to limit this definition by reference to “a reasonable person” and then transforms that phrase from its normal, objective meaning (“the reasonable person standard”) into a subjective standard that reads, “thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating or abusive.”
One can debate whether GMU’s standard is good or bad. The point is that it seems to follow Supreme Court precedent while actually deviating from it — in other words, both GMU and JMU’s policies pretend that Title IX prohibits conduct that it does not prohibit. In the case of GMU, for instance, merely dating someone on campus “alters the conditions of education;” and a hurtful break-up might be viewed as hostile. Accordingly, the GMU Title IX Office can involve itself in such situations, even though neither development has anything to do with educational access and therefore should not trigger Title IX.
Educational access no longer an issue. Manning argues that educational access for women is no longer an issue. She quotes several Virginia Tech women she interviewed to that effect:
My major is human development. I love Tech! There are so many opportunities here—internships, jobs, guidance. My roommate, she’s in engineering and she feels the same way. We don’t see any barriers. She visits elementary schools sometimes to talk to girls about fields open to them. Human Development is more women dominated, unlike engineering, but there are tons of opportunities here. There are also hundreds of clubs here—we hold events on the center field and there’s so much to pick from. Both professional and fun stuff. You get to meet tons of people. — Senior Female, Virginia Tech, February 28, 2020
I’m in communications. The only bias is one I have against myself! That’s a carry-over from high school. Maybe if I were in a different field, like engineering, I would have found sexism, but it wasn’t in the com school. My advisor—she was great, a great advocate. But there was another guy advisor and he was great too… — Female Graduate, Virginia Tech, Spring 2019
I’m in electrical engineering… I feel like for engineering, at least—because there’s so few females, that when there’s a female that applies, [she] gets a little bit of leverage… so they can meet their quotas… The University? Engineering-wise it’s very male oriented but, like, they’re not going to discriminate based on your being female here… all the engineering girls would like just get together you know and there’s like only 5 of us… we stick together— –Third-Year Female Student, Virginia Tech, Spring 2020
I would say we [female students] got equal access to everything… I never experienced anything negative… I felt completely comfortable… –Female Graduate, Virginia Tech, Spring 2020
[M]y first semester I took a dancing class and met a lot of different people. I’m really glad I did that. You know, I discovered later that there were opportunities to meet people other than the frat scene, like at coffee houses and open mikes, but, you know, they weren’t well publicized so the party scene sort of takes over your first year. — Female graduate, Virginia Tech, Spring 2019
I was on the rowing team; it was co-ed—well, we had practices together and then separated for matches. I loved it—a lot of team cohesion, so there were no problems there. We all supported each other. It was great. The school had activities the first week or two, like a movie on the quad and a concert outside the library. I also remember grocery bingo and stuff in the zone—the bowling alley – but after that, first years are focused on work and then they party. You find out later there are more things to do on campus. — Female graduate, Virginia Tech, Spring 2020
Here follow excerpts from the report, based on Manning’s personal visits, on how Title IX is applied at JMU, GMU and Virginia Tech…
JAMES MADISON UNIVERSITY: “Need Bulk Condoms?” The Safer Sex Corner, “A person with a penis or a person with a vagina”
Virginia’s James Madison University is also in a small town, Harrisonburg, though it’s more mountain town than rural. The student body is almost 22,000, mostly from in-state, and its most popular majors are speech communication, rhetoric, and liberal arts. The campus and the town overlap so students do not feel socially distanced, but the buildings are sufficiently close together to create a campus feel.
The Student Success Center — the main student center, with eateries, administrative offices, and the Health Center — is crowded with students eating or waiting to eat, or studying at chairs and tables and smiling at the JMU mascot (Duke Dog) — making the rounds. Both students and staff are friendly, and everyone approached reports liking their school and their classmates.
Oh yeah, I love it here! We all do. But parking is a total pain. — Female Sophomore, James Madison University, February 2020
I feel much less lost here at JMU than I did at my first school. I think I’ve become a more rounded person. –– Senior, James Madison University, Summer 2020
Political signs are few and far between, though the Health Center includes a Lavender Lounge (“Hang Out/Relaxation Space – The Lavender Lounge (located in SSC 1310) is a space for the safe and comfortable expression of LGBTQ+ identities and is for JMU students to hang out and meet new people.”) The Title IX Offices, however, along with their partner, The Student Wellness Center (“The Well”), while also bright, clean, and pleasant, have clear political indicators. The office of the Assistant Title IX Coordinator is full of rainbow flags, for example, and The Well, inside the Student Success Center and part of the Student Health Center, boasts a “Safer Sex Center” near its entrance, with a sign: Need Bulk Condoms? Beneath are 12 bins of colored condoms with different features—textured, vegan, and glow-in-the-dark.
The Well’s staff members include “sexual health counselors” and “survivor counselors.” The receptionist explains that sexual health is their focus, not so much drugs and alcohol. She was not familiar with any healthy relationship programs to help the students avoid problems with dating or socializing.
The pamphlets on display, near the condom corner, address sexual violence, sexual assault, and also eating disorders; nothing appears to address drinking, drugs or pornography.
The receptionist retrieves a sexual health counselor, Jordan McCann, whose formal title is Assistant Director of Health Promotion. Jordan confirms the focus on sexual health, and says the only program they use to prevent sexual misconduct is a bystander intervention called Green Dot. McCann often meets with students who have had confusing sexual encounters. She reviews their sexual history, encourages them to get tested for STDs (sexually transmitted diseases), and always recommends that they use condoms.
Veronica Whelan, the Associate Director of Health Promotion and Well-Being, later joins the conversation from behind the receptionist’s desk. She says female students are not generally aware of STD risks. When asked about healthy relationship skills, Veronica stresses the number of student organizations at JMU: “There’s something for everyone here.” McCann confirms their satisfaction with student well-being. “Here, we are really all about student autonomy and pleasure, whether you’re a person with a penis or a person with a vagina.”
VIRGINIA TECH: Title IX Office and The Women’s Center, Planned Parenthood, Ms. Magazine, ERA YES! Flavored Condoms
The home of Virginia Tech Polytechnic University — Virginia Tech or just Tech, to locals — is Blacksburg, another mountain town, about 100 miles south of Harrisonburg in the southwest corner of Virginia.
Tech is the fastest growing of all Virginia’s state universities. With a student body now over 36,000, it may soon surpass George Mason University as the state’s largest public 4-year institution. Known for its programs in engineering, agriculture and architecture, it is ranked alongside the University of Virginia as one of the state’s most competitive schools.
Like the students at Geneseo and James Madison, the Tech students are friendly, approachable, and pleased with their school. “I love it here,” is not an uncommon remark. Socializing, while reportedly always difficult the first year, gets easier thereafter, especially because of the number of student clubs, organizations and, for better or worse, fraternities and sororities. “You just have to put yourself out there,” said a fourth-year human development major. She added that the campus was exceedingly safe — “You can walk around at 3 AM and not feel at risk.”
Tech is not a party school—you know, it’s not like Alabama or anything. We work hard and then play hard. You know, most students buckle down and take studying seriously. But we also like to have a good time… It’s true that the easiest way to meet people & socialize is by joining a sorority or a frat. I did that my second semester, though my first semester I took a dancing class and met a lot of different people. I’m really glad I did that. — Female Graduate, Virginia Tech, Spring 2019
I didn’t know a single person when I got here! But it was pretty easy to meet people—in the halls, in the dorm, and other students had siblings here… Nobody ever went anywhere alone; nobody would want to. We looked out for each other. The school had activities the first week or two, like a movie on the quad and a concert outside the library. But first years are focused on work and then they party. You find out later there are more things to do on campus. As for student safety, I never felt at risk… I have a strong group of male friends and I always felt safe and protected. To be honest, if something along those lines (of sexual misconduct) were to happen to me, I wouldn’t have even known where to go—the first step. But I never really heard of this as an issue. I don’t think any of my friends ever had an issue with this. We always felt safe. — Female Graduate, Virginia Tech, Spring 2020
The Title IX staff at Virginia Tech are part of the larger Office of Equity and Accessibility; they also partner with The Women’s Center when formal complaints of sexual misconduct discrimination are filed. In fact, the Women’s Center staff report that they are required to support complainants and be involved in the campus Title IX process. The Women’s Center Co-Director of Services, Christine Dennis Smith, says she has been a frequent participant in Title IX hearings. The Women’s Center is staffed exclusively by women and, like other Title IX offices and their partner entities, distributes brochures and pamphlets, published mostly by the Virginia Sexual and Domestic Violence Action Alliance, an advocacy and lobbying organization involved in state and local lawmaking, and also by Planned Parenthood, best known for leading the world in abortion advocacy and practice. A few other pamphlets are published by the University Health Center.
The Action Alliance titles include But I Haven’t Been Hit and I Didn’t Want It to Happen. The Planned Parenthood titles are Considering Abortion, What You Should Know About Emergency Contraception, Your Birth Control Choices, What You Should Know About Consent, and What You Should Know About LGBTQ Sexual Health.
The Women’s Center waiting area also has magazines and newspapers, including the magazine, Ms. (the winter 2020 edition is titled, “ERA—YES!”). Additionally, the University Health Center publication, titled Safer Sex Center Resource Guide, is present, and features questions and comments such as:
“What is a flavored condom used for?”
“If something’s flavored, it’s meant to be tasted!”
“Sexually transmitted infections can be transmitted via oral sex…”
Co-Director Christine Denny Smith has been part of Tech for 18 years. Her work involves support for complainants alleging sexual misconduct, so she is “very careful about messaging.” Historically, she explains, efforts to prevent relationship problems were always directed at women.
At Tech, she reports, they strive to change the culture, not women’s behavior:
I focus on what we can do as a culture: What does the community need to do to prevent this? It’s never the victim’s fault.
When asked about the absence of materials in the Center on alcohol use and abuse, she explains:
Women are told not to drink. But they do and then something happens. I never want them to feel at fault. It’s not their fault. We are teaching people not to take advantage of someone like that. If you’re really drunk, you can’t consent. We have affirmative consent.
Is this true if the alleged offender is drunk? (That the offender is also not capable of giving consent or being responsible for actions taken when drunk?)
Well, that depends…
Smith speaks positively about a company called Catharsis Productions, which creates videos and trains speakers, called teachers and educators, to visit campuses. Catharsis programs include “Sex Signals,” The Hook Up, and Beat the Blame Game, among others. Tech recently brought in the Hook Up program:
It’s all about the hook-up. They do a workshop about what men are taught—“you need to go after the hook-up,” while women are taught, “you know, if you do that you’re a slut…” so it gets students to recognize that and identify that… How do you reconcile that? How do you communicate about that?
Does Catharsis discourage hook-ups?
Video clips of parts of these programs are online and feature young adults speaking to college students: “We’re going to talk today about SEX! A LOT”
“What do you call a girl who has lots of sex?”
“A Ho! Yup. When you’re too lazy to say WHORE…”
“What about men who have sex? Gimme that! Swinger magic stick?? I’ve never heard that!”
The program encourages audiences to distinguish between consensual hook ups and nonconsensual ones—the “bad hook-up.” Gail Stern, the Founder and Director of Catharsis Productions, explains: “Our teachers can ask a group of students—‘So… What does a healthy hook-up look like?” The video quickly cuts to a teacher, “You get an orgasm! And you get an orgasm! And you get an orgasm! It’s like Oprah—under your chairs.”
Another teacher exhorts: “Go! Go hook up with people! And have a good time! And know that people have your back. If I have your back and you have my back, then we’re all gonna be good.”
Ms. Stern tries to summarize: “So the Hook-Up [program] really breathes life into the complexity of [consent v. non-consent] while still restoring clarity about what good, consensual hooking up looks like. And then it also talks about bystander intervention.” In a separate statement, Stern discusses the need for top-down cultural reform within higher education specifically: “I’m hoping that universities and colleges start taking the lead… and doing a top-down approach where all levels of university leadership will really take the lead on understanding this issue.”
GEORGE MASON UNIVERSITY: “Every 2 minutes in the United States someone is raped or sexually abused…”
Virginia’s George Mason University (GMU) is next to Washington, DC, and has a distinctly modern and urban feel. The campus is surprisingly quiet, however, and students and staff seem professional and business-like. A popular major is politics or pre-law, and many of the students benefit from internship opportunities in the capital nearby.
Like many Title IX Offices, GMU’s Title IX Coordinator holds mandatory seminars for faculty, students, and staff to teach the university community about Title IX’s purpose and goals, as well as the role employees must play in the Title IX mission—whether as mandatory reporters of possible Title IX violations, or as support personnel for a possible victim.
Outside the classroom where the November 2019 seminar is being held on the Arlington campus, a 5-foot-tall sign stands by the doorway:
“WE PLEDGE TO END SEXUAL VIOLENCE in order to begin the real practice of FREEDOM and LEARNING at George Mason University.”
“EVERY 2 MINUTES IN THE UNITED STATES SOMEONE IS RAPED OR SEXUALLY ABUSED.”
“SIGN THE PLEDGE—SSAC.GMU.EDU”
“STUDENT SUPPORT AND ADVOCACY CENTER.”
Like the Women’s Center at Virginia Tech, the Student Support and Advocacy Center (SSAC) at George Mason University appears to be a close partner with the campus Title IX Office.
GMU’s current Title IX Coordinator is Angela Nastase, though she is new in this role, having arrived at GMU just three months earlier. She has worked for years in the field, however, having previously served as the Deputy Title IX Coordinator for Creighton University in her home state of Nebraska. The high turnover rate among Title IX coordinators and staff is well known, and Angela is quick to explain, “It’s all the scrutiny Title IX gets! Much more than other areas of discrimination. And so few resources.” She clarifies: George Mason continues to grow, but the Title IX office is relatively small, especially when compared with the University of Virginia.
Like the SSAC sign outside the door, the focus of the seminar is not so much on sex discrimination and / or access to education as it is on sexual misconduct and relationship problems. Nastase opens by discussing the responsibility of all schools to address sexual misconduct — that is, to respond to reports and make efforts to prevent such misconduct. She shares the statutory language of Title IX in her power point presentation, and explains that courts have decided that all sexual harassment is a form of sex discrimination “because it interferes with education.” No mention is made of the variety of administrative definitions over the years, or of the most recent Supreme Court standard of denied access, articulated in the 1999 Davis case. The impression one gets is that any and all sexual misconduct is a matter for Title IX, and is therefore prohibited by GMU’s sex-discrimination policies, overseen by the Title IX Office.
But, she concedes, students often don’t understand what actually constitutes prohibited conduct, and much of the work of the Title IX Office is to try to explain it to them:
We really try to talk to [students] about Title IX… What the prohibited conduct is…
They oftentimes come to us; they don’t understand the prohibited conduct; that they can be removed from the residence hall if they’re creating a hostile environment, by sexually harassing students or you know, continuously making fun of somebody’s LGBTQ status to the point where, you know, they don’t feel safe. So all these things, we try to educate them on – because sometimes they just come to us and they don’t understand consent…
Again, healthy relationships, drinking responsibly, programs with bystanders – how do you be a good by-stander? How do you keep one another safe? How do you create distractions? Anything to keep students safe…
The session turns to the responsibility of employees to report incidents, then to efforts to prevent sexual misconduct (found in Appendix E of the Non-Discrimination Policy “Programs to Prevent Sexual Violence”). Titles of the lectures presented include Turn Off the Violence, Take Back the Night, Survivor Space, The Goddess Diaries, Intimate Partner Violence Panel Discussion, Denim Day, (“sexual assault is NEVER the fault of the victim”), and Fear 2 Freedom (providing AfterCare kits to local hospitals for victims of sexual assault).
Appendix E mentions alcohol only once, and only as an optional component to a workshop sponsored by the SSAC on consent. The phrase “healthy relationship” is also used only once, and no program focuses on this.
What do the Data Say?
Under a federal law called the Clery Act, institutions of higher education are required to keep statistics regarding sex offenses on campus. These statistics must be public and available to prospective students and their families.
In Virginia’s state schools, these data are usually contained in what is called an Annual Security and Fire Safety Report. The most recent Report available from Virginia’s schools is from 2019.
The Annual Report of James Madison University explains that the statistics are not from the judicial system—that is, they are not numbers of convictions of sex offenses, or even of findings of student responsibility for such misconduct. Instead, the numbers reflect “reported occurrences,” also called “complaints received.” These numbers may therefore be higher than the number of actual crimes.
|Offense||Arlington Campus||Science & Tech||Loudoun Campus||Smithsonian School||GMU Korea||Study Abroad|
To provide some context, here are the numbers of reported instances of other crimes at Virginia Tech during the same three years.
Here are comparable statistics for James Madison University. (Note that “Liquor Infractions” for JMU include only those violations that resulted in disciplinary action, while “Drug Infractions” include all recorded drug abuse incidents. Thus these figures are not directly comparable to the Virginia Tech numbers, which include all reported liquor law violations, but only those drug infractions that resulted in an arrest being made.)
As these figures show, the incidence of reported sex offenses is comparatively low, even in years with relatively large numbers, such as Virginia Tech’s 20 instances of rape in 2017 (in a community of more than 36,000 students).
Only rarely do campus “sexual assault” involve incidents in which women are assaulted by strangers who force them at gunpoint or with other weapons to submit to rape, Manning observes. Most complainants know the accused. “Incidents are between two people who are friends, or at least acquaintances.”
Moreover, 95% of campus “sexual assaults” involve alcohol, usually in the context of a house party, frat party, bar or pub. “These are not back-alley attacks by armed strangers, the most frightening and savage image of a real rape. instead, almost all alleged campus misconduct occurs in the context of partying, dating, and other forms of socializing among male and female students.”
And here Manning makes a critical point: One would think recipient schools would aim to prevent such incidents by evaluating student socializing, student dating, and other aspects of social life that might invite or give rise to sexual misconduct or sexual misunderstandings.”
Not a single of the Title IX offices she visited, says Manning, mentions social alternatives to bars or parties, and not one office views the hook-up culture as a contributing factor to sexual misconduct, much less a risk favor. To the contrary, she writes, “they approve of hook-ups — provided they’re ‘healthy hook ups.'”