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

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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 and sexual harassment, and gender-based harassment, which 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 one scholar 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 “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.

-Lolita Buckner Inniss

cross-post from Ain’t I a Feminist Legal Scholar, Too?

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