The complexity and intractability of issues related to Title IX and protection from hostile learning environment are made more difficult when one considers the multitude of new memes, words, and phrases that have recently emerged.  On campuses across the country, Title IX cases have involved a bewildering array of complicated incidents and complex applications associated with hostile workplace environments and sexual misconduct.  Some of these are clear cases of criminal conduct and unspeakable trauma.  The horrific tales of Larry Nassar’s sexual assault against young women gymnasts are clearly beyond the pale and indefensible (Adams, 2018).  Rape and sexual assaults are crimes, and when they occur, severe punishment for the perpetrator is appropriate; no amount of support for the victims would seem excessive.  However, physical sexual assault has been conflated with speech alleged to create psychologically hostile environment discrimination.  Procedures that may seem necessary to support victims of physical assault have been extended to suppress bona fide free speech and  academic inquiry based on the testimony of those with their own agendas and personal demons.

Even popular politicians appear to conflate hostile environment harassment with sexual assault and suggest that considerations of administrative due process and academic freedom should be held in abeyance unless and until the innocence of the accused is proven.  For example, in a recent tweet (2:04 pm – Jan 10, 2019), presidential candidate Senator Kirsten Gillibrand demanded that: “When someone reports sexual assault or harassment, as a first step, we must listen and believe them so all allegations can be investigated fairly and properly…”  Conflating hostile environment harassment (especially if it is unintentional) with sexual assault is not helpful.  Similarly, automatically assuming all allegations are authentic is no way to ensure investigations will be fair and proper.  Educators must insist that academic freedom and administrative due process are given equal consideration.   

Compared to sexual assaults, assertions and allegations of hostile environments are usually less urgent and more political in nature; they should be open for debate and collective consideration and reconsideration.  Terms like “rape culture,” “white privilege,” and “micro-aggressions” all warrant an objective review of relevant evidence and collective conversation.  Lumping these ideas together with sexual assault depletes the resources needed to address actual crimes and, simultaneously, stymies the debate needed to refine our understanding of these complex social phenomena and develop effective, inclusive, and appropriate communal and institutional responses.   There are some cases, that are so seemingly innocuous or obviously unintentional that administrative sanctions seem to be inappropriate and disproportionately punitive.  The imposition of such punitive measures can undermine community trust in institutional integrity and diminish support for effective and inclusive learning environments. 

Presenting extreme cases can be misleading.  Bell curves describe distributions of events along many theoretical psycho-social continua.  Most of the actual Title IX-related incidents with which I am familiar fall somewhere between the extremes.  Respondents to an academic survey of attitudes and perceptions related to Title IX and academic freedom judged over twenty such incidents described in scenarios drawn from real-life events.  Many of their average responses were located between 3.0 (Slightly Disagree) and 4.0 (Slightly Agree) on a 6-point Likert scale.  When asked whether the activity described in each scenario constituted a hostile environment, five scenarios were collectively rated in this small zone of high ambiguity.  When respondents were asked whether they agreed that the activity described would be protected by academic freedom, about one third (7) of the scenarios received these equivocal ratings.  In fact, only one clearly outrageous and egregious incident received an average rating more extreme than a moderate, Somewhat Disagree (2.0) or Somewhat Agree (5.0) collective rating.  Nonetheless, a plethora of dichotomous neologisms create the impression that these issues fall into bimodal distributions on singular dimensions of good and evil.  This complicates conversations among faculty members and confounds administrative due process.

If one presumes that an oppressive racist patriarchy controls most of the institutions in American society (as suggested by those adopting a conflict perspective such as Marcuse’s or Friere’s), social justice requires turning the tables.  In urban jargon, there is a need to “flip the script,” and this often involves doing something unexpected or subversive or somewhat disingenuous.   Flipping the script is like organizational judo.  The technique involves transforming the traditional sources of power within the organization into vulnerabilities, avenues of attack.  Thus, the #MeToo movement seems to insinuate that control over outcomes, legitimacy, expertise, and even information may be prima facia evidence of oppression and abuse.  Old white guys are sometimes assumed to be guilty if charged unless and until they can prove their innocence.  Those who are outspoken or express skepticism of the social justice movement’s ardent claims become easy targets for additional allegations of discrimination and retaliation as occurred in Laura Kipnis’ case when her dean expressed support for her right to publish her politically incorrect views about campus political issues (Kipnis, 2018b).

The Office of Civil Rights provision that Title IX offenses may occur either by “intention or effect” breaks with common sense as well as centuries of jurisprudence.  If someone tries to poison another person but fails, s/he has, nonetheless, committed a crime.  Conversely, if someone accidentally and unintentionally ends another’s life, s/he is not culpable.   In contrast, Title IX suggests that violations may be established either by “intention or effect”.   This provision has facilitated discrimination claims to be pursued and respondents to be punished severely based almost entirely on the self-reported, subjective experience of the alleged victims.  Title IX requires institutions to address issues of harassment and end it; Title IX does not necessarily require punishment.  Nonetheless, administrations often are attracted to public punishment as a final and dramatic solution to end perceived harassment without regard to punishment’s negative effects on campus climate or academic freedom.  Unfortunately, punishment is often the top choice of the administrators least capable of inspiring the levels of engagement and commitment necessary for organizational excellence.    

The idea of the sufficiency of subjective reports of emotional distress is quite problematic.  Many factors can distort or bias both perception and memory.  For example, individuals who are anxious may focus narrowly on certain aspects of their environment or their experience that they expect to be threatening while ignoring other important contextual information (Deffenbacher, et al., 2004).  Depression profoundly affects memory (Waters, 2008).  Every time a memory is revisited it becomes vulnerable to alteration or amendment (Eysenck, 2012).  Those inclined toward obsession as well as those with depressive tendencies are likely to repeatedly revisit (and idvertently revise) events that upset them.  In the process, the reported memory may differ considerably from both the actual events and even the grievant’s original experience of the event.  Rumination can transform slights that did not seem to be worth mentioning at the time, into serious threats over the ensuing weeks or months.  There is considerable evidence to suggest that the modern mythology around flashbulb memories being indelibly (and accurately) seared into one’s psyche are largely untrue (Talarico & Rubin, 2003).  Regretted or reconsidered sexual activity is not the same as rape (MacDonald, 2018). 

Anxiety and depression have become increasingly common and have many potential causes.  Post-Traumatic Stress Disorder, Post Chemotherapy Cognitive Impairment, and just above average neuroticism are likely to increase anxiety and depression.  Lukianoff and Haidt (2018) provide an extensive list of potential causes for recent national increases in both anxiety and depression.  Whatever the cause, these conditions are likely to distort perception and recall.  Medication prescribed to treat these conditions can also compromise the validity of experience and memory on which testimony is based.  Witness’s and victims’ own beliefs can interact with mood and emotion to alter perception (Vroling & De Jong, 2009).  Well-intended prohibitions on introducing information about “character” into campus administrative proceedings are sometimes extended to exclude information that might legitimately reduce the credence of subjective testimony.  The cognitive biases to be expected by individual victims and witnesses are amplified when pejorative narratives developed by personal interaction provide a social context for perceiving, experiencing, interpreting, contextualizing, and recalling events (Eysenck, 2012). 

The concept of “micro-aggressions” is an example of how good intentions can transform innocuous events into monumental dangers requiring intensive intervention.  Both McDonald (2018) and Lukianoff and Haidt (2018) provide extensive explanations and arguments regarding this topic. 

“The term ‘microaggression’ refers to a way of thinking about brief and commonplace indignities and slights communicated to people of color (and others).  Small acts of aggression are real, so the term could be useful, but because the definition includes accidental and unintentional offenses, the word ‘aggression’ is misleading.  Using the lens of microaggressions may amplify the pain experienced and the conflict ensues (Lukianoff and Haidt, 2018, p. 51).

MacDonald (2018) takes a less charitable view.  In a chapter entitled “The Microaggression Farce”, she suggests administrators adopting a “microaggression mindset” will have significant negative consequences far into the future.  She describes an administrative response to student claims of battery against 79-year-old professor Val Rust’s microaggression of touching the arm of a robust and agitated African American male college student:

“… the administration, rather than correcting the students’ misapprehension, penitently acceded to it.  Colleges across the country behave no differently.  In the process, they are creating what tort law calls “eggshell plaintiffs” – preternaturally fragile individuals injured by the slightest collision with life.  The consequences will affect us for years to come (p. 63).”

What MacDonald refers to as “eggshell plaintiffs,” others label as “fainting couch feminists” (donditit, 2014) defined as: “A common kind of feminism, that sees women as too weak and sensitive for normal adult interaction.”  Christina Hoff Summers (Saul, 2017) uses the terms victim feminism as well as “fainting couch feminism.”  By whatever label, the potential for injustice and wrongful prosecutions of validating this mindset is clear as Summers states in her recent interview (Saul, 2017):

“…many… campuses have descended into a kind of sexual McCarthyism where due process was suspended, and the presumption of innocence was replaced by ‘guilty because accused…’ The important thing is to establish due process… where both sides are fully informed of the process and allowed to question the legitimacy of the evidence… The Supreme Court set a very high standard for what counts as legally actionable harassment… The behavior has to be… severe and pervasive… But… campus officials are quietly amending the Supreme Court standard, so harassment includes anything that makes another… uncomfortable. Even jokes, satire and offhand remarks can lead to charges… Title IX was never intended as a guide to good manners.”

This brings us to a very sensitive topic.  Believing the victims of sexual assault has been so elevated, it has become an article of faith in the modern progressive movement as evidenced by Kirsten Gillibrand’s recent tweet.  From this perspective, questioning or expressing skepticism toward anyone claiming “victim-hood” is both unthinkable and intolerable.  Heather MacDonald (2018) takes this issue on directly in a chapter entitled “The Campus Rape Myth” in her book The Diversity Delusion (2018). The evidence she provides suggests some of our common knowledge and collective assumptions about rape culture and the rape crises on campuses may not be all they seem to be.  However, even if all the things said and assumed about sexual assaults on campus were to be true, it would still be necessary to distinguish, verbal hostile environment discrimination from physical sexual assault.  The courts and the Constitution have made this distinction clear – emotional distress is not a justification for denying anyone their First Amendment rights or punishing them for exercising them.

However, the rules of the game created by Title IX predispose victims to express their injuries in the most dramatic form possible.  Exaggeration and hyperbole are encouraged, if not required, by the implicit rules established by good intentions but a lack of clarity in the guidance provided by the OCR, and many campus Title IX programs.  Intent is unnecessary to establish a hostile environment; a subjective report of an emotional harm itself is deemed to be sufficient; impact and effects matter most, and the more dramatic they are, the better.  The more charges by as many alleged victims as possible, the more compelling the case.  This is especially true, when there are no negative consequences for making false charges or the administration is unwilling to enforce false claim sanctions for fear of dissuading other victims from coming forward or being accused of not being sympathetic to the progressive agenda. 

Somewhat similar situations have occurred in college athletic events for many years.  Soccer and basketball are two sports that have been especially susceptible to a phenomenon referred to as flopping.   Such actions reside on the dark side of sport.  Exaggerated expressions of pain or injury are used effectively by a player on one team to obtain harsh penalties against an opposing player and secure a strategic advantage. In a recent NPR interview prior to the last World Cup, a seasoned observer provided the following candid observation:

“Well, flopping is the dark art of the beautiful game. And make no mistake about it, it is an art. The best floppers, you look at it in real time, you go, oh, God, he got fouled because he looks like he’s the victim of the cruelest… brutality as he crumbles like he’s been shot… It’s not until you look at it in slow motion afterwards you realize it was literally a stiff breeze that knocked him over… is it just another part of the game? …you could argue that it is another soccer skill. However, it’s gotten to the point where it degrades the game. It’s not fun when this happens all the time, and people are rewarded for cheating. You’re not supposed to be rewarded for cheating (Sterry, 2018).”

In the academic games we play, there may be less at stake as in the World Cup of Soccer or the NCAA Basketball Tournaments; however, flopping poses just as great a danger to the integrity of our “game”.  The only real difference between academia and these other intercollegiate events is that our academic interactions seldom provide video replays of the actual events alleged to have been violations of hostile environment prohibitions.

Flopping, however, is not the only threat to institutional integrity.  Bullying is the use of coercive power to oppress (punish or deny rights to) those with less power.  Bullying necessarily involves intention; “inadvertent bullying” is an oxymoron.  Confusion has been created by the phrase, “whether by intent or effect,” often included in regulations prohibiting hostile environment discrimination.  The injury – whether actual or threatened may be either physical or emotional.  However, it is important to consider whether a reasonable person would interpret the situation as the grievant does.  Also, it is important to consider convergent objective evidence – especially in instances where the injury is alleged to be emotional distress.  This can be tricky since those with certain identities (or beliefs) may have a bias toward interpreting situations as being threatening that other reasonable people would consider relatively innocuous.  Old white guys who complain of a lack of due process or accuse their “victims” of flopping are likely to be labeled as “cry-bullies” and have their concerns dismissed without further consideration.  While it may be possible to establish (by a preponderance of the evidence) that a hostile environment existed, automatic punishment of the respondent may be unfair and ineffective.  Punishing individuals for inadvertent injuries to others is itself a form of bullying.  Increasing reliance on the concept of “micro-aggressions” is likely to continue to exaccerbate these difficulties.

It’s time to stop the flipping and flopping and settle in for some sincere and extended conversations about the underlying issues and the common ground shared among the many constituents involved in higher education.