The Trouble with 'Bureaucracy'

7 California Law Review Online 66 (2016)

U. of Pittsburgh Legal Studies Research Paper No. 2016-27

14 Pages Posted: 22 Sep 2016

See all articles by Deborah L. Brake

Deborah L. Brake

University of Pittsburgh - School of Law

Date Written: September 16, 2016

Abstract

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing the federal government’s efforts to regulate sexuality on campus as a bureaucratic overreach. This essay offers several counterpoints for thinking about Gersen and Suk’s critique. First, how much personal liberty would be enhanced by the dismantling of the bureaucracy depends on the conditions of sexual equality in which that liberty will be exercised. Second, Gersen and Suk’s lens of bureaucracy obscures the pre-existing role that government and institutional actors have played in regulating and influencing the conditions of sexuality. Finally, Gersen and Suk’s account of the democratic illegitimacy of the federal sex bureaucracy neglects the grassroots activism that pressed for a tougher regulatory regime and the legitimate role executive agencies can play, consistent with robust democratic engagement, in strengthening sex equality law. In the final analysis, any decision to disengage or recalibrate the federal sex bureaucracy must take into account and bring into dialogue the stories of both survivors and accused students.

Keywords: campus sexual assault, Title IX, Clery Act, higher education, sexual, sex, sexual equality, OCR, Department of Education, universities, sexual violence, sex discrimination

Suggested Citation

Brake, Deborah L., The Trouble with 'Bureaucracy' (September 16, 2016). 7 California Law Review Online 66 (2016), U. of Pittsburgh Legal Studies Research Paper No. 2016-27, Available at SSRN: https://ssrn.com/abstract=2839948

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
79
Abstract Views
572
rank
360,563
PlumX Metrics