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The precise number of women assaulted on college campuses is itself a subject of debate. Advocates point to federal surveys suggesting that one in five female students have experienced assault while in college, which amounts to about 400,000 students. Even accounting for a likely high rate of underreporting, however, the Federal Clery Act, which requires colleges and universities to report crimes on campuses, reported far fewer rapes, with 8,529 in 2018. A separate Justice Department study from 2013 found nearly 28,000 students had reported rapes, attempted rapes and assaults.
Professor Halley, the first gender and sexuality theorist to get tenure at Harvard Law School, has long been a woman willing to stick a dissenting head into a lion cage of liberal orthodoxy. Too many feminists, in her view, have abandoned liberating freedoms for the allure of governmental power and punishment. As she puts it, these activists have traded the megaphone for the gavel.
Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.
The Obama-era policy on Title IX not only incited intense debate; it also set off a flurry of legal challenges.
It was once vanishingly rare for students accused of sexual misconduct to challenge their universities. But for several years now, such students have filed lawsuits arguing lack of due process at a rate of twice a week, according to Professor KC Johnson at Brooklyn College, a critic of Title IX regulations who monitors such legal challenges. And federal judges have found that regulations trampled on the constitutional rights of students. To cite two examples:
In one case, two gay freshmen at Brandeis College fell into a romantic relationship that lasted nearly two years. They broke up and, six months later, one student accused the other of sexual misconduct, including looking at his private parts while they took showers and kissing him while he was asleep. Brandeis’s examiner did not tell the accused student of the nature of the charges and denied him a chance to question witnesses.
The student was found guilty of “sexual violence.”
In 2016, a federal judge allowed that student to sue Brandeis, observing tartly: “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself.” The accused student eventually dropped the case.
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