Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault

Abstract

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.

Keywords: Sexual assault, campus sexual assault, Title IX, Office for Civil Rights, Dear Colleague Letter, sexual harassment, sex discrimination, feminist legal theory, liberal feminism, dominance feminism