Ignorance, Intent, and Ideology: Retaliation in Title IX
32 Pages Posted: 7 May 2017 Last revised: 29 Oct 2017
Date Written: May 7, 2017
As it currently operates, retaliation under Title IX collapses important distinctions between individual action and institutional response together. Intent and causation can help guide how we deal with different kinds of retaliation, but they do not help remedy harm. In this Article, I attempt to confront what I take to be a devastating, and devastatingly common, phenomenon with the nuance it requires. It is difficult to know what to do in the wake of assault and harassment in your community, especially if the facts seem murky, as they almost always do. Schools are in the business of providing a safe educational environment; because of this they have a great responsibility when it comes to preventing and responding to assault and harassment. I argue that educational institutions should be held strictly liable when they fail. Individuals present a harder case. I argue that individuals often act out of active ignorance — ignorance for which they should be held accountable, though what it means to be held to account for one’s ignorance should depend on the circumstances.
Keywords: philosophy, law, philosophy and law, epistemology, title IX, retaliation, ignorance, intent, causation, epistemic injustice, feminism, feminist jurisprudence, torts
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