Charles U. Zug
July 20, 2017
rivate conflict resolution skills, such as civil disagreement and apology, are giving way to state-sponsored reporting, especially on university campuses. The Education Department and its Office of Civil Rights have taken to encouraging college students to disclose their interpersonal conflicts and complaints directly to the Title IX Office and their university’s administration. If Title IX replaces common decency with mandated protocol, tattling will become the new norm, replacing the “Rules of Civility”.
Title IX’s original, limited purpose was to require colleges that received federal funds—almost all of them, in other words—to treat the genders equally. The statute was limited to relations between students and the university’s administration, not relationships among students.
Since its 1972 enactment, however, Title IX has expanded in size and scope. Today it regulates relations between students by creating review boards that act as the judge, jury, and sentencing commission for students’ interpersonal conflicts. A student’s objectionable comments on a peer’s outfit, for example, used to be met by a private confrontation and demand for an apology. Under the new and improved Title IX, however, students have the power, which they’re encouraged to exercise, to skip these formalities and immediately initiate proceedings with the university’s administration.
What determines whether an offense warrants a Title IX investigation? The criteria are nebulous and subjective: one student’s compliment is another’s sexual misconduct or harassment. Consequently, distinguishing an “insult,” from an “offense,” “misconduct,” or “harassment” depends on the vehemence with which the offended party demands redress.
Title IX Offices administer a type of justice that conforms to no known due process standards. The accused student, having received a “No Contact” proviso as soon the complaint was filed, cannot be enrolled in the same class with his accuser, let alone seek to talk things out. There is no right to confront and cross-examine the accuser, or to legal counsel. Accused students are forbidden to bring a lawyer to hearings, or anyone else who might advise against answering self-incriminating questions asked by the Title IX staff. Once the hearings conclude, guilt or innocence will be determined by Title IX functionaries the accused has never meet. If found guilty, he can be expelled without ever having the opportunity to resolve things privately with his accuser.
Private disputes are a natural part of life. Individuals with competing interests and opinions will always interact and devise ways to get along. Bureaucratically enforced harmony under Title IX disempowers citizens by depriving them of the freedom to disagree and deliberate. Perfect uniformity of thought and opinion is only possible through tyranny, a reality the Founders well-understood and articulated in Publius’s Federalist 10. Moreover, John Adams distinguishes between barbaric and civilized ways of life, contending that barbaric people characteristically insist on righting their own wrongs, rather than petitioning a higher authority. “Barbarism” tends toward anarchy while “civility” is the capacity to submit private conflicts to a third and higher party—whether the Christian God or the Highest Law of the Land—before those conflicts get retributive. For Adams truly dangerous conflicts are handled by the state, while free individuals sort out everything else among themselves, including private quarrels.
The modern state has to maintain a delicate balance between anarchic barbarism and soft-despotic statism. Under Title IX, we are opting for the latter. More than the accused’s due process rights—as important as these are, and as frustrating as it is to see them violated—at stake is our capacity for civilly solving routine problems without the state's help.
Nevertheless, with the new administration, a reversal is possible. Since the Obama administration implemented most of these policies through executive order, the Trump administration can nullify them by the same means. Such actions would strengthen our capacity for self-government, thereby helping to secure the blessings of liberty for ourselves and our posterity.