Sexual Harassment Accusations Without Actual Misconduct Behind Them
I'm seeing the world turn more and more Orwellian, with people -- especially male people -- having their civil liberties yanked away, their college educations and lives ruined, and even their freedom taken, all in the name of "protecting" others; usually women.

Drowning out women's demands to be treated as men's equals are demands to be treated as eggshells -- as powerless kittens whose personal safety is not to be seen as their responsibility but the state's...at all cost, even if it means crumpling up the rights of those accused (but not deemed guilty in a court of law) of some crime against them.

Harvard law prof Janet Halley writes at Harvard Law Review about "backing off the hype in Title IX enforcement" and about a concern for protecting civil liberties "framed as indifference to abused women," as is increasingly the case:

IMPACTS WITHOUT MISCONDUCT

Here is the case that woke me, personally, up to the dangers of an unthinkingly broad, advocacy-based definition of sexual harassment. An employee, who disclosed eventually that she had been the victim of sexual abuse as a child and was ever-vigilant about her personal security, brought repeated complaints of sexual harassment against male faculty. She experienced being physically bumped by a male faculty member in the tight quarters of a copy room to be a sexual assault so humiliating that she could not communicate directly any more with that person. Hallway eye contact that lasted too long had the same effect on her -- giving rise to an accusation against another faculty member for repeated unwanted sexual conduct. Eventually we realized that these complaints would keep coming in and, on investigation, keep failing to meet any reasonableness standard. It was a tragic situation -- the episodes were both severe and persistent for her, and severely limited her work activities, but we could not keep entertaining the idea that they were sexual harassment.

It is not at all clear to me that this case, which occurred more than a decade ago, would be handled the same way today. Then, we were working in a framework that required sexual harassment enforcers to identify a wrongdoer. But the "prevention" branch of hostile environment policy emanating from advocates and the OCR is eroding the link between harm and wrongdoing. Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to take regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews and justify large expansions of the powers and size of the administration generally.

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends' privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) -- all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

When the duty to prevent a "sexually hostile environment" is interpreted this expansively, it is affirmatively indifferent to the restrained person's complete and total innocence of any misconduct whatsoever.

In a related development, OCR increasingly implies that the only adequate "interim measure" that can protect a complainant in the Title IX process is the exclusion of the accused person from campus pending resolution of the complaint. To be sure, in these cases the accused may eventually be found to be responsible for violations, sometimes very serious ones. But advocates and the OCR are arguing that all complainants are trauma victims subject to continuing trauma if the persons they accuse continue in school: merely "seeing" the harasser is deemed traumatic.

These cases are becoming increasingly easy. Interim measures and environmental security provisions are justified as "merely administrative," the equivalent of determining that more lights should be installed on campus walkways or that food safety certificates should be required for all vending machines. And like merely administrative acts conducive to public safety, they follow a strict liability model. But ending or hobbling someone's access to education should be much harder than that. It may well be that the only effective way to convince people that this tendency is dangerous is to point to the rights they invade: rights to privacy, to autonomy, to due process. But the tendency itself is due for scrutiny. Assuming danger, risk, and holistic environmental contamination ensures that restrictions will go into effect even where the facts don't justify them. Will decisionmakers -- and in particular governance feminist decisionmakers -- be able to resist this trend?