Recent conversations about sexual assault and harassment on college campuses have triggered questions about the role of regulation in a university environment – how should a university balance its obligations under federal regulation with the interests and needs of its students? This week’s WAPPP seminar featured Professor Kristin Bumiller, George Daniel Olds Professor in Economic and Social Institutions and Chair of Political Science at Amherst College. Professor Bumiller’s presentation focused on the Department of Education’s Office for Civil Rights’ (OCR’s) enforcement of Title IX with respect to campus sexual misconduct. However, her conclusions have a broad application to public enforcement of civil rights remedies for violence.
In 2011, the OCR released a guidance letter that places certain obligations on educational institutions and grants students the possibility of a civil rights remedy for any and all forms of sexual misconduct. This guidance letter circumvents legislative rulemaking, which is not a new strategy – the federal government employed similar methods to desegregate public schools and to equalize opportunities for women in athletics. However, the most controversial aspects of the guidance letter are those that place universities in an investigative or adjudicative role for sexual misconduct, when these issues may be more appropriately handled in criminal court. This dichotomy – between internal university procedures and the criminal justice system – does not adequately capture the complex reality of the social policies at play, according to Professor Bumiller.
The consequences of displacing private action with public enforcement
Civil rights cases have always relied on the “hybridity” of public and private action. Individuals bring their own civil rights claims, acting as “private attorneys general” to seek enforcement for themselves and in the public interest. These cases set the stage for future litigants and play a vital role in expanding civil rights doctrine. However, victims of discrimination bear enormous burdens (including psychological and financial) in seeking to assert their rights in court. Students who experience sexual violence typically have little capacity for private action – though they can go to federal courts or ask for protection from OCR, both forms of relief likely occur in small numbers, as there is a very high standard required to bring a claim against the school. This burden on victims to create systemic change diminishes the prospects for private action. Shifting toward public enforcement may detract from private action that has previously stimulated policy innovation.
Confluence of OCR directives and managerial prerogatives within universities
Managerialism has been growing in all aspects of university life, with a greater emphasis on efficiency, quality control, and evidence-based programming. One of these managerial priorities is securing campus safety, even though these concerns may require tradeoffs with student and faculty autonomy and privacy. Ensuring campus safety may justify enacting policies (like mandatory reporting) that replace community norms. In some cases, Professor Bumiller says, the OCR directives are used to transform the organizational culture of the university in order to reduce risk. When this occurs, regulations stand in for rights and compete with fundamental protections that define relationships in university settings. The assumption of managerial logic means that anything related to sex is considered a security issue.
The role of legal entrepreneurs in creating compliance regimes
Regulations like the OCR guidance may produce voluntary commitments, according to Professor Bumiller, but these commitments might be loosely connecting to actually promoting equality. Rather, these commitments are largely instrumental to institutions’ public relations agenda – rather than being substantive initiatives, they’re “good for business.” In trying to protect against reputational risk, many institutions have sought out compliance specialists – usually lawyers and risk managers – who offer expertise on interpreting guidance letters like the OCR’s and advice on avoiding sanctions. These compliance specialists often strongly counsel universities to take the opportunity to standardize policies and more closely monitor all workplace behavior. As previously mentioned, this can create a difficult tension between risk mitigation and other priorities like student privacy – and with the threat of sanctions, risk mitigation can overrule campus values.
Title IX enforcement and the larger symbolic project of protecting women
The OCR guidelines are an example of administrative actions that take derivative civil rights authority and implement it through federal criminal justice policy, Professor Bumiller says. Pointing to campus sexual misconduct as a criminal issue provides an opportunity for political leaders to show they are tough on crime. In doing so, the narrative of campus sexual assault is separated from fact and serves to polarize the audience, simplify the problem, and overestimate the government’s capacity to solve it. While the discourse on protecting women creates opportunities for leaders to claim credit for solving political problems, more often than not administrative and legislative actions reinforce the status quo.
Civil rights enforcement expanding a crime-control agenda
Civil rights enforcement is linked to a larger shift to a victim-centered crime control agenda. However, Professor Bumiller says, victims don’t always benefit from victim-centered criminal justice regulation – it can be ineffective, counterproductive, or at worst can criminalize women (for example, when women report domestic violence, they risk being arrested themselves).
While institutions may have an interest in punitive measures or a police response, victims’ desires vary wildly. When regulations diminish individuals’ autonomy to handle the situation how they choose, the focus is back on the institution furthering its own interests and minimizing risk from the incident.
The essential problem, according to Professor Bumiller, is that Title IX enforcement in this realm never established its force as a civil rights measure, and instead substituted crime control as its fundamental goal. The rule of law is expressly punitive, and institutions demonstrate that they are taking sexual violence by punishing the accused. As long as this demonstrating compliance is the goal, Professor Bumiller says, we will conflate civil and criminal adjudication, both of which are linked to state and institutional powers furthering their own interests.
The question and answer session for this seminar was particularly rich, touching on the literature on victim-centered crime control measures and issues of access to the criminal justice system. Perhaps the most compelling topic was whether education and awareness campaigns about campus sexual assault overemphasize the sexual aspect. Much of the literature on sexual violence emphasizes that these acts are not about sex, but power. We may not be adequately interrogating the dynamics of gender and power on college campuses. As more women enter universities and excel, there may be some gendered resentment or feelings of being left behind that underlie sexual misconduct and violence. These considerations have largely been left out of the policy discussion, but may play a critical role in understanding and combatting sexual misconduct on campus.