One doubts that the members of Congress who drafted Title IX intended to produce what Harvard Law School professors Jacob Gersen and Jeannie Suk have called ”bureaucratic sex creep,” in which colleges — allegedly to ensure compliance with Title IX’s non-discrimination mandate — micromanage the sex lives of students, and subject them to Orwellian levels of surveillance, investigation and supervision. In essence, students now risk being kicked out of school for not getting express consent for every sexual act, all based on a law that was intended, 45 years ago, to end discrimination in college athletics.
This has been done not because Congress ordered it, or even because the Education Department promulgated regulations with notice to the public and an opportunity for comment. Instead, the Education Department’s Office for Civil Rights has issued “guidance,” in the form of letters to colleges and universities stating its opinion as to what the law required. And its opinion represents quite a stretch from what Congress intended, and wrote. So far, in fact, that a University of Kentucky professor was punished for “sexual misconduct” for singing the Beach Boys’ “California Girls,” which the University of Kentucky said contained “content of a sexual nature.”