“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.
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.”
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]
[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]
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