A Model Disciplinary Society

The Title IX Regime and the Successor Regime

Back in 2019, I profiled a group of Harvard Law School professors who organized a petition in 2014 to push back on new rules being imposed onto American universities by the federal government. The rules sought to punish and deter sexual assault and harassment on American university campuses by promulgating a definition of misconduct so expansive that it "plausibly covers almost all sex students are having today," and through the creation of campus tribunals for the adjudication of claims of misconduct that stripped out the rudiments of fair process to such a degree that the resulting system was, as the quartet put it in an open letter, "so unfair as to be truly shocking."

The four professors -- Jeannie Suk Gersen, Nancy Gertner, Janet Halley, and Elizabeth Bartholet -- were all in different ways pioneering feminists within legal academia and legal activism. The piece sought to emphasize the degree to which the turn toward feminist collusion with -- or indeed, commandeering of -- repressive state power in pursuit of its ends has always been a live and contested question within feminism itself. It also sought to publicize more widely the underappreciated fact that opposing a system "so unfair as to be truly shocking" did not necessarily have to entail putting oneself in the company of Trumpists, right-wing reactionaries, Men's Rights Activists, and other pariahs hated within the precincts of liberal academia. Doing so could at once be an act of feminist solidarity (though one out of step with the new orthodoxy installed into power by officials within the Obama Administration) and a defense of the core principles that serve at the foundation of our legal system itself. (It could also just be a preference for fair systems, or, any any rate, an aversion to systems so unfair as to be shocking.)

In blunter terms, it sought to give liberals permission to think about and criticize an obvious wrong that had emerged from the matrix of progressive activism in pursuit of ends with which they all tended to be aligned, under cover of its righteous intentions. It highlighted those authorized to make precisely such judgments about procedural fairness -- law professors at Harvard University -- buttressed by a form of authority that has increasingly come to be salient in determining who is allowed to speak and be heard on which subjects -- a political and identity-based claim grounded in lived experience. It was in this way a submission to the authority of that requirement that served as a meta-critique of the very requirement it took pains to fulfill. It underscored that inasmuch as liberals should not require permission to think about the totality of the intended and unintended consequence of their own acts in pursuit of what they believe to be the greater good — they should of course be doing this by default and thus consider the maintenance of a culture that rewards doing so and punishes not doing so as a cardinal duty— they do in fact need it.

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The argumentative structure went thusly: 1.) "we oppose sexual assault and support measures to curtail it, but not through the creation of an administrative leviathan that effectively defines the possibility of consensual sex out of existence and leaves the accused facing a system overwhelmingly stacked against them," and 2.) "We are allowed to say it without instantly being canceled and, indeed, for our objections to carry some weight by virtue of our prior credentials within the feminist movement and our experiences as women."

The shocking unfairness of the rules governing Title IX tribunals are, of course, visible at a glance to any minimally informed observer. Their significance is the ease with which they were installed, the difficulty in having criticisms visible to any minimally informed observer gain any traction, and the tenacity of the underlying consensus that seeks their reinstatement under Biden — and above all, in the larger complex of antecedent facts that made these truly audacious changes possible. Taken together, that complex of facts constitute the machinery of ideological succession.

As it happens, the professors were only able to make limited gains in their effort to alert their peers to the fact that a disciplinary system "so unfair as to be shocking" had been imposed onto every college in America by an act of executive branch fiat that bypassed the statutorily required rulemaking process in favor of an act of naked intimidation. (The Office of Civil Rights within the Department of Educated issued a letter threatening the withdrawal of federal funds to any university that did not comply with guidelines for the new disciplinary system, an act bordering on lawless extortion that no university could afford to be seen resisting, much less litigating. Professor Halley told me that no judge in America would have ruled that the commandments of the letter were legally binding.) They were able to devise and win acceptance from the Department of Education for what they regarded as a much fairer system of adjudication of Title IX for Harvard. But though they sought to have the university adopt this more fair system, the university chose to make it apply only to the law school.

They were also able to make the subject of the Title IX system's excesses a discussable subject among informed parties within liberal academe and media. But they were not able to immunize themselves against claims of "siding with rapists" or hold at bay the pervasive chilling effects that being portrayed as colluding with great evils by activists imposes.

I quoted one of the subjects of the Chronicle piece, Jeannie Suk Gersen, in piece describing the blowback she received.

“To call for fairness meant that you were on the side of rapists. Which sounds ridiculously unreflective. Yet it was a claim that people were making.” Conversely, “To stand up for fair treatment became something considered brave. That was so amazing! People kept saying, ‘This is so brave of you!’”

I asked her if she felt fear.

“If it were truly an innovative or outlying position, then maybe I would have been nervous. It didn’t seem that was warranted. This truly was nothing more than living up to the ideals we live by and teach our students every day.”

Above all they left behind a formidable body of work scrutinizing the creation of what Jeannie Suk Gersen termed the Sex Bureaucracy that serves as a kind of Rosetta Stone for how contemporary social justice movements exercise non-electoral power by capturing institutions and making creative use of existing authorities to pursue their ends. Gersen’s article shows how the movement behind the Sex Bureaucracy does not just seek to impose prohibitions, but instead to generate new forms of knowledge and subjectivity that will remake the culture from within. It is the work of people trained in the Foucaultian critique of institutional power who have found ways to leverage those insights to become its bearers imposing new forms of normativity onto the world.

Through a combination of grassroots activism, media advocacy, and executive branch fiat, a progressive movement embedded within the Democratic party was able to create a permanent state of exception within the rule of law and build a working model of a new kind of disciplinary society — one existing within the framework of traditional law, but reaching out to seize parts of the surrounding framework that enclosed it. The movement used its ties to a media structurally aligned in its incentives to treating the bearers of righteous moral crusades that permit the narrativization of events as a morality play to elicit overwhelmingly favorable coverage. When the hated pariahs spoke out in opposition to them, this polarized the issue in ways that forced more reasonable voices who shared some of the concerns that the Harvard feminist professors were authorized to voice publicly into anxious silence.

The movement relied on advocacy researchers using tendentious methods to arrive at tendentious findings to manufacture a sense of crisis around sexual assault in the early years of Obama’s second term — a few years after it was widely reported that the incidence of sexual assault had declined by more than 80 percent between 1980 and 2009. It used its connection to the White House to magnify those claims, laundered into academic respectability by other advocates, though easily debunked by anyone taking a more than cursory glance. (But why are you questioning the data proving the existence of a rape crisis?) It then relied on its allies on the inside of the Department of Education to take exceptional action to meet the ongoing state of exception. We will return to those allies, who have since returned to power in the Biden administration, in future posts.

The drama at the center of the Chronicle piece linked above is one of professional conscience — of those who seek to hold true to and defend “the ideals we live by and teach everyday,” in the face of a coalition of professional activists and activist professionals driven by a self-generated sense of crisis to overturn those values and replace them with ones of enforced loyalty to dogmatic new commitments that explicitly abjure the familiar ideals. This coalition has at its disposal the complex of antecedent facts that made the Title IX crusade possible, supercharged in their potency by the ultra-polarization of the Trump years. They have new crusades to visit upon us: a ramping up of the degree of regulation of the conduct of everyday life to insulate people against injuries or threats to psychological safety, in turn requiring a transformation in the educational system to establish a new universal baseline of moral premises. And they are, in case you haven’t noticed, in the process of installing by administrative fiat across the full range of American institutions utopian redefinitions of sexual identity and gendered difference. To those we will turn in the next post.