Excerpted From: Nancy Chi Cantalupo, Dog Whistles, and Beachheads: The Trump Administration, Sexual Violence, and Student Discipline in Education, 54 Wake Forest Law Review 303 (Spring, 2019) (319 Footnotes) (Full Document)
On November 29, 2018, the Trump Administration's Department of Education (“ED”), under the leadership of Secretary Betsy DeVos, published in the Federal Register a Notice of Proposed Rulemaking (“NPRM”) proposing expansive changes to ED's regulations under Title IX of the Educational Amendments of 1972 (“Title IX”). These changes focus on Title IX's prohibition of sexual harassment, which includes sexual violence as a severe form of sexual harassment. The NPRM, among a very long list of other starkly unequal proposals, suggests lifting the historical expectation that schools will use a preponderance of the evidence standard of proof in their internal sexual harassment investigations. Instead, the NPRM proposes a rule that would push schools to adopt a clear and convincing (“C&C”) evidence standard for not only sexual harassment but also other forms of discriminatory harassment.
According to DeVos, the general goal of the proposed rules is to ensure that students who are accused of sexual harassment receive “due process.” This concern about due process has only been expressed with regard to named harassers--not the victims who named them. Moreover, when viewed in the larger context of DeVos's apparent agenda for ED, the NPRM appears to use Title IX, particularly Title IX's prohibition on sexual harassment, to establish a “beachhead” in a larger war on civil rights and equal educational opportunity.
The term “beachhead” is usually defined in military terms as a way to establish a military presence in an otherwise hostile location or as a starting point from which to establish a larger military campaign against those hostile forces. Merriam-Webster indicates that the first usage of the term was in 1920 in the military sense, and perhaps the most commonly known example of a real invasion from a beachhead was the D-Day invasion of Normandy. Outside the military context, the term is used to indicate the establishment of a foothold, one that can be used to launch an effort to expand on that foothold. Princeton University Professor Anne McClintock has adopted Jane Mayer's use of the term in her book Dark Money to suggest its applicability to a particular political strategy involving Title IX.
Although Professor McClintock does not elaborate on the beachhead metaphor, her analysis is well supported when one looks closely at the NPRM and its context. Indeed, the NPRM functions as an attempt to establish a beachhead in several respects. First, as a matter of legal doctrine, it stakes out a position that is hostile to what surrounds it, attempting to force schools to adopt rules that are fundamentally unequal under the authority of a law designed to advance and protect equality. In other words, it encourages schools to “comply” with a law that prohibits discrimination on the basis of sex by adopting policies and procedures that discriminate against the class of persons the law seeks to protect. Second, in terms of the democratic support it enjoys, the NPRM is again in enemy territory because Title IX has overwhelming public support, including with regard to its goal of preventing sexual harassment, yet the NPRM takes affirmative steps to make such prevention harder and less effective. Third, as a strategy, the NPRM attempts to use an issue and a group--sexual harassment and sexual harassment victims--who are particularly vulnerable to such attacks in an effort to establish a starting point from which to attack the civil rights of other vulnerable groups--chief among them racial and ethnic minority students.
It is on this last point that the NPRM and its drafters have enlisted the dog whistle. As Professor Ian Haney Lopez has demonstrated, “dog whistle politics” have successfully caused many Americans to support public policies against their own interests through coded messages that favor those in power, whether they be rich, white, male, or some combination of the three. The NPRM makes a more subtle use of the dog whistle, deploying “due process” towards (and occasionally by) those generally affiliated with the political left to inaccurately suggest a goal of racial justice, while having a very different meaning to those usually affiliated with the political right. Indeed, those who can hear the dog whistle understand correctly that increasing “due process” actually protects and strengthens the already powerful privileges reserved for white, cisgender men, privileges that equality fundamentally threatens because no truly equal system can systemically privilege one group over others. The NPRM's dog whistling adopts a particular narrative regarding Title IX, race, and sexual harassment--one with virtually no research or empirical evidence to support it but nevertheless suggesting that the primary accused students whose due process rights are being violated are black male students falsely accused of sexual assault due to their race. This suggestion relies on analogizing sexual assault accusations by college women (who the narrative misrepresents as all white) against accused assailants (who the narrative equally misrepresents as all black) with accusations of white women in the Jim Crow South during the lynching period. This comparison then allows those who agree with the NPRM to spin their concern with “due process” as one about combatting race discrimination against black men, even though they and others who can hear the dog whistle understand that it does not protect against discrimination but actually protects and may even add to the unequal privileges that primarily benefit white, cisgender men.
This spin is a dog whistle because DeVos, other Trump Administration ED officials, and those allied with them know that college men named as sexual harassers and assailants are not only black students. In fact, the campus proceedings used to resolve complaints of sexual harassment are overwhelmingly nonpublic and therefore provide almost no actual data about the demographics of campus sexual harassment. Nevertheless, when one considers the racial demographics of the few groups of accused harassers whose identities are public, such as those exposed by #MeToo, such named harassers are at least a racially diverse group, and likely predominantly white. Similar demographics are also known to those who work with students involved in real campus sexual harassment cases. Therefore, the unequal (because more protective) “due process” protections that the NPRM gives to reported harassers will likely mainly benefit white men. Further, DeVos's allies are aware that ED's professed concern for racial justice is not borne out in reality, since DeVos rescinded Obama-era ED guidance that sought to protect black students, in particular, from discriminatory discipline, a major factor widely recognized to trap many students of color in the “school to prison pipeline.” In other words, when faced with a documented racial disparity in school discipline that has clear and deeply problematic connections to the criminal justice system, the Trump Administration seeks to undermine due process, not increase it. Moreover, even as ED loudly promoted due process for named harassers, it undermined due process for students of color quietly by announcing its rescission late Friday afternoon before the Christmas holiday while a government shutdown was imminent. Thus, the general public is likely to think ED is promoting racial justice, even if it is not actually doing so. In this way, the “due process” dog whistle is born.
This dog whistle seeks to reassure those “in the know” that the beachhead ED and its allies among Men's Rights and similar groups are trying to establish with the NPRM will in fact operate as a beachhead--one from which they can launch attacks against other previously well-established civil rights, especially those guaranteeing protection from discrimination based on race. And indeed, many of the proposals in the NPRM provide the opportunity, once Title IX has been successfully robbed of its central purpose of protecting against sex discrimination, to undermine other civil rights protections. In particular, the NPRM's proposed changes to the evidentiary standard will enable attacks against the rights of other protected classes, including victims of racial and other forms of discriminatory harassment, not just sexual harassment.
Accordingly, Part II will first map the ways in which the NPRM's attempt to replace the historically used civil rights preponderance standard with the quasi-criminal C&C evidence standard attempts to establish a beachhead in a larger and longer war against civil rights and equal educational opportunity. This broad attack on civil rights in education will undermine the rights of not only sexual harassment victims but also other discriminatory harassment victims, especially women students of color and those in other intersectional populations (e.g., girls with disabilities) who are disproportionately vulnerable to such harassment. ED's permission to adopt an inappropriate standard for sexual harassment will open the door for schools to do the same for other forms of discriminatory harassment. This will result in fewer protections from all discriminatory harassment, not just sexual harassment, and at precisely a time, post-2016 election, when such harassment is skyrocketing.
Part III will then demonstrate how the due process dog whistle is a key weapon in the establishment of that beachhead. Specifically, it will show that although ED claims to have issued the NPRM to enhance accused students of color's due process rights and promote racial justice, the NPRM actually acts as a part of a campaign by a number of coordinated groups, many of which are men's rights groups or groups funded by organizations like the Koch Foundation, to undermine the rights of not only harassment victims but also those accused students who are overwhelmingly African American. As a dog whistle, it seeks to convince the public that dismantling Title IX protections for sexual harassment victims will better protect students of color's due process rights, while distracting attention from Trump officials' quiet dismantling of Obama-era efforts to stop disproportionate school discipline of black students.
Finally, Part IV will discuss the potential and actual use of the “commenting power” to defend Title IX and its intended beneficiaries (i.e., sexual harassment victims) as well as the classes protected by civil rights laws that can be attacked via an anti-Title IX beachhead. This Part will use the results of a June through September 2017 ED comment call, asking for public “input on regulations that may be appropriate for repeal, replacement, or modification,” to show the high level of democratic support for Title IX, as well as the undemocratic nature of agency actions such as the NPRM. It will also discuss the important implications of this resistance strategy under the Administrative Procedure Act, which is concerned with reining in antidemocratic impulses by unelected officials.
[. . .]
In the end, the public comments filed in response to the NPRM will tell us what the dog whistle's effect has been and whether the effect has been significant enough to establish the Title IX beachhead that the DeVos-Koch-FIRE-ALEC group is endeavoring to establish. ED issued the NPRM approximately fourteen months after the end of the 2017 Executive Order 13,777 comment call, the rescission of the 2011 DCL, and the issuance of the Interim Guidance. Ultimately, the NPRM drew over 112,000 comments. During and beyond the intervening year, millions of survivors disclosed having suffered sexual abuse as a part of #MeToo, resulting in hundreds of powerful men being credibly accused and many removed from their influential positions, as well as research (re)confirming that large majorities of women and significant minorities of men have experienced such abuse. The multiple sexual assault allegations against Justice Kavanaugh during his Supreme Court confirmation process generated massive protests by survivors and their allies, including disrupting the Senate Judiciary Committee hearings, blocking streets around the Capitol, occupying a senate building, and confronting Senator Jeff Flake on live television in a manner that appears to have influenced him to call for an FBI investigation. The Time's Up Legal Defense Fund raised $22 million in a single year, and women candidates running for state legislatures, Congress, and governorships broke record after record for women's representation in elected office, first in Virginia's 2017 elections, and then in the 2018 federal and state governor elections.
Without reading and coding every comment, it is impossible to know whether the comments filed so far reflect the same extreme imbalance between those who support Title IX and those who oppose it that the Executive Order 13,777 comments did, and opponents of Title IX seem hopeful that “public awareness is on [their]side.” The co-president of Families Advocating for Campus Equality (“FACE”), “a group that represents students who say they've been falsely accused of sexual assault” spoke about FACE's work with “men's rights groups Stop Abusive and Violent Environments and the National Coalition for Men” and likened their groups' efforts to “'the little engine that could,”’ complaining that they “'just don't have the resources”’ to mount the same kind of effort as the Title IX civil rights activists are. Given the connections between FACE, SAVE, FIRE, ALEC, and funders such as the Koch and Scaife foundations, it is hard to believe that monetary resources are a problem. Nevertheless, the comments filed in the Executive Order 13,777 comment call indicate that human resources might be a significant difficulty. The title of an article published in January, before the comment period had closed, “There's a Quiet #MeToo Movement Unfolding in Government's Comments Section” corroborates this suspicion.
In light of this situation, the Trump Administration's best hope of succeeding in finalizing the rules proposed in the NPRM may very well be dog whistling its way into it. After all, in the past, dog whistle politics has been used quite effectively to divide Americans along racial lines. If “due process” dog whistles are similarly successful here, the Trump Administration will likely be successful in establishing its Title IX beachhead in its larger war on civil rights. In that sense, this NPRM is a test of us all. We the people will have to use the check and balance power the APA gives us and all say #MeToo in rejecting dog whistles if we wish to prevent establishment of the beachhead.
Associate Professor of Law, Barry University Dwayne O. Andreas School of Law;