The untimely death of handsome gorilla Harambe inspired a flood of public grief and, unavoidably, a far greater outpouring of memes mocking said grief. College students moving into dorms all over the country bonded over a raft of tasteless jokes superimposed on photos of Cincinnati’s fallen son. So, of course, it was not long at all before some well-meaning administrator pointed out that, yes, posting a Harambe meme can trigger a Title IX investigation.
Robert Shibley of the Foundation for Individual Rights in Education helpfully condensed the disturbing history of a decades-old sex-discrimination law’s stifling grip on campus speech into a fifty-page monograph, published Tuesday. The Department of Education’s Office of Civil Rights (OCR), over the past decade, has issued intensifying guidances to incentivize a broader and more punishing interpretation of what constitutes sexual discrimination or harassment in schools and how a school must respond to an accusation of assault. In Twisting Title IX, Shibley explains how one federal agency’s authoritarian ambitions got us here—from efforts to grant girls equal access to sports teams to censoring dumb jokes.
What’s known as “undergraduate humor” is necessarily repulsive—broadly and happily offensive. It puts the polite world of one’s parents at a distance for the sake of developmentally overdue independence from the overbearing constraints of good taste.
Shibley cites Northwestern University’s Laura Kipnis, a feminist professor hauled into a Title IX investigation for writing critically of a campus culture that punished sexual libertinism, particularly between teachers and grad students. In the offending essay Kipnis referred to Northwestern’s sexual harassment policy for professors, which banned inappropriate humor: “I’d always thought inappropriateness was pretty much the definition of humor—I believe Freud would agree. Why all this delicacy? Students were being encouraged to regard themselves as such exquisitely sensitive creatures that an errant classroom remark could impede their education, as such hothouse flowers that an unfunny joke was likely to create lasting trauma.”
In an email to Clemson students on Monday, college bureaucrat admonished students that “Harambe should not be displayed in a public place or a place that is viewed by the public.” And warned, “My hopes are that you are being inclusive in your words, whichever you choose to say, so that you are not reported to [the Office of Community and Ethical Standards] or Title IX for using bias [sic] language against someone.” Clemson clarified the message after catching flak for the suggestion Harambe memes are “racist” and “contribute to rape culture”—but the administrators who issued the warning were absolutely right to bring up Title IX. The potential consequences of a Title IX investigation are no joke: Trials, with no guarantee of fair proceedings, lead to suspension or expulsion.
For instance, OCR’s guidances use funding incentives to force colleges to adjudicate sexual assault complaints to an evidentiary standard lower than what the law requires. In what Shibley calls “campus kangaroo courts,” one unqualified administrator might serve as both judge and jury. Unfair proceedings in sexual assault cases may seem to be these federal guidances’ gravest consequent injustice. But, according to OCR, any perceived harassment (here’s where poor Harambe comes in) merits inquisition under Title IX.
In 2014, during finals, a female student at the University of Oregon shouted a vaguely crude song lyric out her dorm room window. Another student, offended, shouted back—and filed a complaint. The first shouter, the offender, “was charged with two violations of her university housing contract, disruption of the university, disorderly conduct, and, of course, harassment.”
Shibley’s organization stepped in, issuing a national press release to expose the public university’s unconstitutional punishment. The next day, the student learned the charges against her had been removed, and she was let off with a warning. Such is the accepted pattern at this point: Effectively publicize these episodes, and some imperfect restoration of justice might follow. When it comes to preventing the federal overreach executed under Title IX, or undoing its destructive influence, there are Republican lawmakers continuing to point out that the execution and extent of OCR’s Title IX overreach brazenly ignore the law.
The New Deal-era Administrative Procedure Act (APA) requires public notice and comment for any new regulation sprung forth from the alphabet soup of federal agencies. Guidances, like OCR’s, intentionally sidestep the process of public review, which is required by law. Shibley also points to “one particularly maddening vignette,” a hearing in which OCR told former education secretary and chair of the Senate HELP Committee Tennessee senator Lamar Alexander that the Dear Colleague Letter was “not legally binding but that OCR expected schools to ‘comply’ with it anyway.”
And just last week, Senator James Lankford of Oklahoma questioned yet another Title IX “guidance” before a subcommittee on federal oversight, which he chairs. The latest Dear Colleague Letter from OCR reinterprets the law’s definition of “sex” to include a student’s chosen gender. “I fear that more and more, agencies are using guidance procedures as a way to get around APA rulemaking requirements,” Senator Lankford said.
In general, the arguments of the who-needs-college crowd come across specious and reactionary, particularly when a coddled teen’s individuation traditionally depends on four years of college. But consider now the contemporary campus, warped and sanitized as it is by the fear of Title IX violation: It’s a place where socialization via irreverent nonsense is all but outlawed. Maybe tearing down the whole college cartel is the right idea.
Massive open online courses, for instance, might make for a generation of anti-social eggheads, their learning uninterrupted by inappropriate laughter. But at least these internet learners, unlike the joyless hoards from Amherst to UC Irvine, will never be more than a couple clicks away from the most offensive memes known to man.
Correction: An earlier version of this story incorrectly stated the author’s name.
