Title IX, Single Episode Sexual Harassment and Telling Stories Out of School

This June marks the 40th anniversary of Title IX. Its principal provision reads as follows:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”

Educational institutions from primary schools to universities who receive federal funding are subject to the law. Title IX is best known for having transformed the arena of women’s sports. Title IX, however, has a much broader reach: it applies in a number of other key areas, including sexual violence, sexual harassment and gender-based harassment. The latter may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature. One of the  controversial aspects of Title IX jurisprudence is that sexual and gender-based harassment is not only defined by persistent behavior but may also be found in a single episode. This latter fact is the subject of numerous critiques. But what is sometimes missed in such criticism is the full nature of even a “single episode” of harassment, especially within educational institutions.

According to social theorist Anthony Giddens, all social life is episodic. By this Giddens refers to specific beginnings and endings, and to particular sequences within those beginnings and endings.  Even seemingly small single episodes usually effect main institutions within a social totality. This is nowhere more true than in the case of sexual or gender-based harassment in educational settings. Social dominance and hierarchical organization are key features of many educational settings; the relationships between students, teachers, support staffers and administrators are characterized by power and authority, distinction and subordination. Combined with these are hierarchies that exist well beyond educational settings: stratifications of gender, race, class and sexual orientation are just a few.  These conditions may easily give rise to episodes of sexual or gender-based harassment.

Despite the seriousness of such events, they are all too often deemed of little importance in educational settings. As scholar Robin Patric Clair notes, incidents of sexual harassment rarely receive "the same public exposure, legitimation or respect" as other sorts of problems in institutional settings. This may be especially true in the context of education. All too often such concerns are deemed plebeian, mean and  inimical to the storied liberal values, high-minded erudition and studied self-reflexivity thought to prevail in many educational institutions.  Hence, narratives of sexual or gender-based harassment may be, according to Clair, “sequestered”—intentionally segregated from the mainstream and rarely considered an appropriate subject of publicly shared anecdotes.  Because exposure of sexual or gender-based harassment may be harmful to dominant interests in such settings, such narratives are frequently re-framed by rhetorical devices that influence interpretation of the incident without being part of the content of the incident. In such re-framing, victims are often said to have harmed institutional interests, and/or to have misunderstood the harasser and/or to be “too sensitive” to the natural, harmless, and socially appropriate ebullience or humor of the harasser. Finally, re-framing may deny the occurrence of harassment altogether. In short, re-framing can and does make claims of sexual and gender-based harassment “go away.”

Given the climate of sequestered stories of sexual or gender-based harassment found in many educational settings, employing Title IX in such cases can be a challenge since liability is typically triggered only once an institution knows or reasonably should know of the claimed sexual or gender-based harassment. Victims must therefore be empowered to tell their stories, whether of persistent or single episode harassment--in school and out.  The U.S. Department of Education’s Office of Civil Rights April 2011 “Dear Colleague Letter” was a needed reminder of the responsibility that educational institutions bear in addressing claims of sexual harassment, gender-based harassment or sexual violence under Title IX. While not a solution to the these problems, when deployed Title IX can offer push-back to re-framing and allow victims yet another means of articulating the legal and ethical wrongness of such behavior.

[Versions of this article are cross-posted at the blog of the American Constitution Society and the blog of the National Women's Law Center]

Loving is as Loving Does

On June 12, 1967, in the case Loving v. Virginia, the United States Supreme Court unanimously struck down Virginia's anti-miscegenation law, thereby invalidating such laws across the country and allowing interracial couples across the nation to enter into legally recognized marriages. The plaintiffs, Mildred Delores Jeter Loving and Richard Perry Loving, were arrested in the wee hours of the morning in June 1958, confronted in their marriage bed by police officers and arrested for violating Virginia’s Racial Integrity Act. The couple pled guilty, received suspended sentences and were barred from the state. Several years later they reopened the case, leading to the now famous ruling. Click here to see a short film about the Lovings.

Many people celebrate June 12 as Loving Day, the day when racial barriers to marriage equality were toppled and when African Americans came a giant step closer to achieving full civil rights. Today is perhaps a particularly poignant celebration as we debate the status of same-sex marriage by recalling that less than fifty years ago whites and blacks (and people of some other racial backgrounds) could not marry in almost one-third of U.S. states. For decades, there has been a political and legal debate about the meaning of Loving and its implications for the status and rights of same-sex couples in our society. Some have argued that Loving, while useful to the same-sex marriage debate, is not a matter of simply or impulsively matching familiar figures in a test of legal reflection. Maybe not,  maybe so.

The case of the Lovings was not necessarily simple or straightforward, either in law or in fact. At the time that the Lovings were arrested, the legal parameters of equal protection and due process doctrines did not fully resemble their modern forms. The factual backstory of the plaintiffs was equally as opaque. Few people realize, for example, that Mildred Loving, while identified by several documents, by some people in her community and by the justice system as black, did not necessarily consider herself black, but rather, as white and Native American. According to one author, her marriage license, hanging on the wall of her bedroom when she was arrested, identified her as "Indian." In an interview she gave in 2004 Mildred Loving was said to have identified her mother as full-blooded Rappahannock and her father as Rappahannock and white; she went on to say that as far as she knew “no one in her family was black.” The Rappahannock, like some other Native American groups, were sometimes described as being of mixed black and aboriginal blood--despite their own claims of pure aboriginal identity. One account suggests that Mildred Loving may have publicly accepted a mixed Native American-black designation in order to allow the case to proceed on firmer, more compelling grounds. In a case founded on race, the race of one of the parties was in no way clear cut. 

One thing was clear in Loving: the case helped to dismantle racial boundaries and lessened law’s ability to serve as a tool to naturalize racial hierarchies and ideologies of racial purity. Whatever their racial backgrounds Mildred and Richard Loving were prevented by law from forming an intimate and social partnership with each other for reasons that defied logic. Anti-miscengenation laws, regardless of their targets, have long worked hand-in-hand with larger-scale regulatory regimes to limit the rights of citizenship to narrow classes of persons.  Here the analogy is clear: permitting same sex marriage, like permitting interracial marriage, is a step on the path towards full civic membership for all.