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Barbara Kelley

Feminism in the universities is nothing new. The movement had its start among intellectuals outside universities—Simone de Beauvoir in Paris, Betty Friedan in America—but soon made its way to academia. Feminism was able to change American society from the top down, but that did not prevent feminism from expressing, teaching, and even thriving on a contradiction. Put simply, feminism did not, and still does not, know whether to say that women are capable or vulnerable. If women are capable, they deserve to be independent, particularly of men; if they are vulnerable, they need to be protected, particularly from men (and yet, of course, by men).

The most recent, also the most revealing, illustration of the contradiction can be found now in the movement on the campuses of universities to protect college women from sexual assault. The movement has support from students, but once again it is led from the top, this time by a branch of the federal government, the Office of Civil Rights (hereafter OCR) in the Department of Education. In fact, the OCR does not merely propose a program or lead a movement, it lays down a set of regulations with which universities must comply. So far, despite this unprecedented intrusion, universities have meekly submitted to be instructed by what the OCR, with a phrase for the books, calls “significant guidance.”

Before examining the OCR’s mandate, however, it is best to return to the contradiction within feminism that both characterizes and inspires it. To do so will require a brief summary of the theory of feminism, for feminism cannot be understood without examining its theory. One could even say that feminism is all about theory. It wants to reject all previous experience of relations between the sexes and substitute a new status for women in our society unknown in any previous society. Feminists can be diverse but they are all living, practicing theorists leading a revolution of theory applied. 

What is known as “radical feminism” is simply the original feminism of Beauvoir and Friedan, and the later “waves” of feminism share the radical principles of the original version without drawing its radical conclusions.  A moderate feminist might regard herself as independent of men but freely choose to live with one on terms of equal independence.  Or she might feel free to practice, if not defend, feminine modesty.

For the fundamental assertion of feminism is that women are equal to men, and equal not as counterparts to men but in every respect. Feminist women refused to suffer a husband’s proud, or ironic, praise as “my better half,” which implied that women (and of course also men) have a natural role making them counterparts of each other as couples. So, taking the bull by its horns, feminists mounted an attack on the idea of “nature,” now put in quotation marks and, as they say, “problematized.”

Nature in the classical tradition refers to the whole of things composed of natures, with distinct definitions, delimiting parts of nature that are also wholes in themselves. Thus men and women each have natures defining them, distinguishing them, and in this case, joining them. As against this sort of thinking, feminism declared its opposition to all such definitions or essences, and crowned “essentialism” as the devil inspiring all oppression of women by men. This thesis in epistemology or methodology, made into a slogan for the initiated, illustrates the theoretical character of feminism as a popular movement.

Then, having no essence, women are urged, and actually compelled, to define themselves and make an “identity” of their own not given by nature. In the past, it was said, women’s identity was made for them by men, as in Beauvoir’s notion of an “historical” woman and in Friedan’s “feminine mystique.” Now at last in their new freedom, women can create their own identity for themselves rather than accept one made for the convenience and domination of men. Why would women want to create an identity rather than submit to one?

The demand to create implies that women have the freedom to create, and that such freedom is more suitable for women than is submissiveness. Suitable, however, means better suited to what? To women’s nature or essence. We are back to essentialism. To prevent this one must assert that women are right to make whatever they want of themselves without reference to what suits them. But if this is so, they could make themselves submissive to men as readily and justly as independent of them. If there is something wrong about this result, doesn’t it mean that women have an essential element of freedom in their nature, like men?

In fact, feminism makes a new feminist identity for women, replacing the old feminine mystique that Ms. Friedan condemned as having been made by men. The new one is to have the same freedom as men. This is what is meant by “having it all”: not to live like a god with no limitations but merely like a male without the hesitations and inhibitions previously imposed on women—and like a woman as well. A woman can become independent of men by learning how to imitate them, thus making actual men dispensable while retaining the use of all their qualities.

To prove that women can do everything men do, the most logical feminists find it necessary to practice their excesses, or at least boast of them—announcing with satisfaction that the murder rate by women is rising or discovering that rape is a gender-neutral crime that women too have the force and malice to commit. A strange independence of men that requires slavish imitation of their faults!

Yet if women are not imitation men but capable of improving on men, this would imply an essential character of women enabling them to do so. And if women excel men in any one respect, there is danger that men might excel them in some other respect. The suffragettes—old-style feminists—demanded the vote for women because they thought women were more moral than men; the women’s vote would purify democratic elections that had been corrupted by selfish men.

But of course it is a pain and a drag on one’s freedom, today’s feminists proclaim, to be held more moral than others and hence less aggressive. No more feminine modesty!  For this is the grounding of the infamous double standard for sexual conduct, higher, and hence more confining, for women. The same is true of another alleged superiority of women such as aptitude for motherhood, for a woman’s mothering is too close to her supposed morality, and vice versa. Both of them smack of essentialism. Women must now take a risk and show their independence by imitating the most risk-loving males. In sex, this means adopting the ideal of sexual liberation in theory and in practice consorting with the most predatory males.

Now we have followed the logic of feminism to its culmination in the acceptance of risk. The greatest risk is to be found beyond the bounds of nature, where one is left to one’s own devices, alone in unguided freedom, so to speak in space, like the actress Sandra Bullock in the movie Gravity. Yet this is by no means the whole of feminism. In the new situation of total risk, feminists feel uncomfortable.

Devil-may-care is not the sort of life they welcome. Like Sandra, the earth, with all its limitations, is where they want to live. They want company, not merely as witnesses to their daring (as men might) but as “support”—a word women like to use, particularly when thanking people. Gratitude for support means that they want to be supported. Since a woman can no longer count on the support of her husband—having dispensed with it—she needs to be able to call the police in case of trouble or a social agency in case of penury or a lawyer in case of discrimination. She needs to ensure that her independence is protected and nurtured by an environment that is not “hostile.” The riskier her life, the more protection she needs; so we have the paradox of an enormous increase in women’s liberty combined with a comparable increase in governmental protection to ensure it in case of trouble.

In accordance with feminism, and perhaps partly in consequence, women are no longer imprisoned in the private sector; now in the public sector, they need to bring the comfort and security of the private sector into the domain of public responsibility. The government, their new husband, takes over the task of providing for their security. Women are no longer the weaker sex, but they remain the more vulnerable sex. The new-old essence of women is vulnerability. Their exciting new sense of risk must be made riskless, their sexual adventures free of misadventure, their newly-acquired manliness given the support of a wife. The trouble with feminist imitation-manliness is that, unlike men, feminist women have no wives. They do have sisterhood, in which they keep one another company, but often it is company in sharing complaints that reminds women of their vulnerability more than their independence.

Lesbianism is one solution for the problem of gaining support without losing independence, but an imperfect one—particularly now that it lacks the thrill of outlaw behavior. If one needs a steady partner to bring security in life’s adventures, why not marry a man? Perhaps having a husband is adventure enough. So to avoid the trammels of marriage and dependency on the love of a man, feminist women call in the government to supply their needs.

Government too is an imperfect solution, because it does not have the moderating influence that comes with the support of a wife. The moderating influence comes with the sexual difference between men and women that feminism has renounced and of which government is required to be as ignorant as possible, concealing benefits for women as gender-neutral. Sometimes, though, government wants to claim credit for helping women, as in the “Violence Against Women Act.”

Vulnerability is obviously the contrary of independence; it is what those who live for independence must suppose they have overcome. The vulnerable are not equal to the invulnerable, or, given human mortality which makes us all vulnerable, the more vulnerable are not equal to the less. To compensate for the vulnerability of women, government must not assume that women are equal, as seemed to be its duty at first if women are to be independent, but rather assume they are unequal and make them equal.

Equality is transformed from the presumption or precondition of feminism to its goal, to be reached by equalization of the unequal. The trouble is that equalizing women defines them as unequal because of their vulnerability, which is precisely the presumption of feminism’s enemies—patriarchy and its root cause, essentialism. Hence feminism’s contradiction: presuming women as both equal and unequal to men, and as both lacking a definition and having one.

After this perhaps unexpected disquisition we may return to the OCR in the Department of Education, a small unit in the sprawling bureaucracy of the Obama administration. The OCR takes its authority over educational institutions, including universities, from amendments to the Sex Discrimination act passed in 1972, the now famous Title IX. Some thirty years later, first under the Clinton administration and now more fully under the Obama administration, the OCR has decided to mount an aggressive campaign to extend its authority over sex discrimination into sexual harassment, violence, and other sexual misconduct. In so doing it follows and repeats the contradiction in feminist theory we have seen, for protection against sex discrimination presumes that women are equal to men, whereas protection against sexual harassment and violence presumes that women are more vulnerable than men and thus unequal.

Working with this contradictory transformation of its authority, the OCR has fashioned a campaign of equalization to make women equal without admitting that doing so implies they are unequal. It uses the concept of “hostile environment” that was invented for sexual harassment in the office and applies it to sexual misconduct (up to and including rape) between the sexes in universities. In both places the target is overbearing males. The difference is that in the office unwanted sex gets in the way of business, whereas in the universities these days wanted sex is the business at hand. In the universities the students are young and many are inexperienced, while in the office most everyone is mature in age.

Moving from office to university, we go from harassment as insinuating sex to misconduct in the practice of sex. The notion of an “environment” comfortable to more mature women who want to be let alone becomes much more demanding as it is transformed into one in which sex with an immature woman must be satisfactory rather than botched. Being equal to men, the young woman has like them the right to free sex in a friendly environment (which among other things means one that does not frown on extra-marital sex), and being unequal to men, she needs protection unlike them so that she can say no at any stage.

The OCR, to be sure, works from a negative definition of “hostile environment” and never defines a friendly one. But in the universities a woman has the right to initiate an encounter as a man might do but then suddenly to call a halt at any point, as a man is unlikely to do. She can also regret the matter at the instant or later, and demand intervention of authority on her behalf, also unlikely in a man. In such cases she can report the man involved and accuse him of misconduct without fearing that he could or would accuse her of trifling with or frustrating his desire. There is a difference between men and women that could readily be considered “natural” in having sex, especially in the loveless sex now endemic in universities: that women appear to be not as capable (if that’s the right word) as men of walking away after having sex. For women, consent often means something different than for men; women look more to the formation of a relationship, less to the pleasure of a moment.

To a man, a hostile environment for sex would likely be one he could not walk away from; to a woman, it would be one in which he could do just that. The OCR wants to give women the normal right of a man to pursue sex—that makes them equal to men—but also keep for them the normal right of a woman to say no to pleasure when a man would think, why not? The non-hostile environment promoted by the OCR protects the right of women to imitate men and yet remain women and not imitate men.

It is important to set the notion of “hostile environment” in the actual context of sexual behavior on the universities, because there is reason to think that the actual sex scene there is quite different from the norm of loveless sex that universities have established and that the OCR seeks to protect. One expert source, though controversial, is the book by sociologist Mark Regnerus and Jeremy Uecker, Premarital Sex in America; How Young Americans Meet, Mate, and Think about Marrying (2011), which makes the point in the title that casual sex today is still considered premarital.

Women still think about marriage, or at least a “relationship,” and with one of these in view as well as their own pleasure, they remain the “sexual gatekeepers”: “Women can have sex when they wish to,” they write, “men can only hope for it.” Most women do not wish to give out sex for free, though some do. The latter, one suspects, are for the most part feminists, who feel impelled to take the initiative away from men as the expression of their equality with men. Feminine modesty is no longer held as a virtue, but it is still practiced as in a woman’s interest and even sometimes acknowledged as a woman’s normal inclination. The word “normal” is ambivalent between the loveless sex that is held up as the norm to follow and the quite different norm actually typical of most women (and also men) in college, who enjoy the idea of being free but do not regard it as a license to be wild. Most college women are still nice girls almost all the time.

I draw this conclusion from observation and conversation, and not from a “study.” If true, it shows that the OCR’s attempt to create a university environment friendly to casual, loveless sex is not what most women indicate they want. They want the right to be wayward but not the expectation that sex is the normal end of an evening out. After all, when sex is expected, it’s no longer wayward. The fun of transgression is gone, replaced by the anxiety for an experience of “good sex.” And this is not so much the desire as the practice of a minority of college women, who use eros to their political goal of equality rather than allowing themselves to be carried away by it. Most college women keep their distance from the hook-up culture while thinking wistfully of dating and marrying. Unfortunately the universities, and now the OCR, not only do not oppose this “culture” but through their support for feminism do their best to keep it alive.

The OCR has issued a set of regulations that compel the universities, starting this year, to change their policies in regard to sexual misconduct in order to reduce it, perhaps even to abolish it. It has now become the legal responsibility of a university to prevent the creation of a “hostile environment” in which students or staff or faculty might fear becoming the object of unwanted sexual attention. They must be free not only of the fear of crime but of being offended, for sexual misconduct, as universities have long understood, usually occurs in a grey area between what is criminal and what is acceptable.

The OCR has aggressively entered that area for the first time ever with its regulations for what constitutes misconduct and its requirements for enforcing them. This is a new mission for the federal government, beyond what any state government has attempted (except recently in California, with the same new idea). The fervent ambition behind it can be seen in the OCR’s warning that one single occurrence of sexual misconduct in a university can be the trigger for declaring it to be harboring that environment.

That is why these regulations do not merely control sexual misconduct but also actually look forward to its abolition, as if that were possible and attainable as well as desirable. When women are declared to be equal to men in every regard, there is no excuse for not removing entirely their fear of ever becoming the object of unwanted attention. Their fear must be transformed into a man’s unconcern for that event. Universities are now responsible for maintaining the happy situation in which a woman never receives a proposal that offends her because it is unwanted and thus makes her feel vulnerable. Then at last women will truly be equal to men, and the equality that had been merely posited for them by the feminist movement is at last realized and justified.

Yet the means for attaining this crazy goal are even more remarkable. In accordance with the feminist contradiction, women are in no way to be warned, and men exhorted, to change their attitude toward sex. They do not have to abandon any of the “achievements” of the sexual revolution, which have emboldened predatory males and impressed a minority of women that they should comply.

The OCR does not declare any sexual conduct to be inappropriate, as in the old-time phrase, now obsolete, condemning “conduct unbecoming the behavior of a gentleman.” Whatever you can get your partner to consent to is all right with the OCR, for the OCR, like universities now, would never want to claim moral superiority for any mode of behavior except perhaps for the most licentious insofar as it departs from and rejects that claim. No, the OCR confines itself to punishment for violations of the principle of consent, as described by the woman.

Well, not the “woman” but the “complainant.” The man is called the “respondent.” One could also say “accuser” and “accused,” but that is the language of criminal law. The OCR wants to reach misconduct that may verge upon criminal but that for the most part stays within the realm of bad or nasty behavior short of crime. Colleges have always had to deal within this realm because they need and must maintain the good behavior that sustains a community of learning. Their goal is not to advance morality regardless of learning but rather to sustain learning with good character or indeed, to use the OCR term, with a moral “environment” friendly to learning.

To do this colleges must keep a watchful eye on current standards of sexual behavior, neither too censorious nor too welcoming. They need to keep both sexes happy, the women who are vulnerable and now less accepting of their vulnerability and the men who are as always the source of trouble yet now in short supply in many colleges. On top of this, colleges must deal respectably with newly clamorous same-sexers who are not satisfied with the opposite sex and insist on devising new identities for themselves and others.

This is the testy situation the OCR barges into with its one-sided feminist regulations and near-complete disregard for the self-government of America’s universities. Its disregard is not quite complete because it wants the universities to administer those regulations and to punish the guilty. Every college or university is required to have a Title IX Coordinator whose task is to find the facts of a sexual complaint, leaving the decision of guilt and punishment to deans or other administrators.

The Coordinator, in charge of the facts, is in charge of the standards that decide which facts are relevant, and she (for what college would appoint a man?) would likely direct, not merely “coordinate,” the matter of sexual misconduct, while the college would bear the onus of deciding the particular guilt and prescribing the punishment. At my college (Harvard) the Title IX Coordinator is actually a former employee of the OCR. It is unclear whether she works for Harvard or for her former agency, and her mission dictated from OCR is certainly to keep Harvard in thrall to the OCR.

Thus the administration of the OCR regulations is an example of indirect government: the university pays for its very own federal director disguised as a coordinator and carries the can for any controversy or embarrassment that may arise from enforcing the OCR regulations. How have these regulations been conveyed? The Assistant Secretary in charge of the OCR has sent a series of letters to the leaders of American universities addressing them as “Dear Colleague.” In them the leaders are treated in fact as children, not colleagues. They are given a Q and A catechism that mostly tells them what they “must” do, occasionally what they “may” do. With their unctuous concern and meticulous specifics they could easily serve as the exemplar of what is meant by the “nanny state.”

The OCR regulations are stunning in their presumptuousness. They are asserted with the force of law but were not passed by Congress or considered by the courts, nor were they formulated after a legally required process of hearings and comment. Equally stunning is the docility with which they have been received by the universities. Though there are signs of discomfort, not one has opposed an intrusion upon their self-government in a matter of educational discipline that previously has been left to them.

There has been no public objection to the OCR by the universities. In the case of Harvard, there has not even been an acknowledgment that these regulations came from the OCR. It is as if the university thought up this policy on its own, when in fact it is adopting it submissively, hiding the federal government’s unprecedented intrusion with its own servile pliancy.

One could go on to explain features of the new OCR policy that make it a danger to civil rights, as indeed has been done in a published petition by a number of Harvard law professors. As to due process, these are rights that will not be protected by the new policy: a hearing, the right to confront or cross-examine witnesses, the right to an attorney, the right of appeal to a neutral party, protection against double jeopardy, the right to a presumption of innocence, the right to have one’s case heard by an impartial arbitrator. The new standard of misconduct requires less evidence than before, as it is necessary only to prove by “the preponderance of the evidence” rather than “beyond a reasonable doubt.”

Then, as to free speech, the new policy requires what amounts to a speech code of impermissible things to say. Innuendo, gestures, remarks, hints that give offense, whether objectively or subjectively, will be punished, particularly if they endorse or imply “sexual stereotypes” of masculinity or femininity. These specifications will be taught to people who may resist them, or indeed to all, in courses of OCR-approved “training.”

Obviously these matters are directed against offenses of men. But women need to be instructed too. Women are inclined to be hesitant about reporting sexual misconduct. They are woefully disposed to take refuge in the shadow of the right of privacy, so insisted upon by many women in other matters. They might doubt that if the unwelcome conduct of a man falls short of a crime, a sensible woman should be required, regardless of her privacy and at the cost of her time and equanimity, to report it. She might think that vindictive justice in this sort of circumstance ranks low on the list of rational motives, though not as low as the duty to provide statistics to the government. At the top of that list one might find the desire to return to one’s studies regardless of an unwelcome experience. But no, she must overcome these doubts.

The new policy cares nothing for the reputation of the university or the privacy of the parties to an incident. On the contrary, the bureaucratic mission of the OCR is to find and publicize as many incidents of sexual assault and misconduct as possible. Damage to the university’s reputation is welcome, as furthering the mission, and privacy of the parties is explicitly subordinated to their shaming and to that of the institution.

This shaming is the main strategy of feminism. Over the years since its inception in the Sixties and Seventies, it has made its way not by force or argument but by “raising consciousness,” i. e., inducing shame that women are not treated as equals. The OCR’s use of indirect government—getting the universities to punish themselves rather than be punished by the government with loss of funding—is a mode of shaming them into proper behavior. It is almost unnecessary to remind readers that under patriarchy shame was regarded as a woman’s weapon. It is by the woman’s weapon that the woman’s essence is to be destroyed.

Shame works by getting its object to blame himself rather than being blamed by others. So the woman’s weapon must not be seen to be wielded by the woman. The whole policy and all its processes are wrapped in the language of gender neutrality. This is not women vs. men; it is complainant vs. respondent. A fog of make-believe legalistic formalism pervades the policy, its proceedings, and its advocates. Nowhere is it avowed that its true purpose is to punish men.

Feminists are not wrong to think that rape is a danger and a terrible harm. But they increase the risk of rape by encouraging women to prove themselves equal by rushing into casual sex with men they do not know. The result is to provide a field day for predatory males. The result is also bad for most women and most men, those who do not want to play the aimless pleasure game of loveless sex. One recent male graduate I know said that when he arrived as a freshman, Harvard gave him a free condom. He put it in a drawer and there it stayed for four years. Yet no other avenue to good fun—let alone maturity—was open to him.

What is strange is that the feminists at the OCR are attacking the feminists who now control America’s universities. University administrators have, under the influence of feminism as well as some degree of good sense, taken many various measures to provide for the good and the comfort of its women students—adding offices and new personnel, hiring counselors, making special provisions—and now the universities stand in jeopardy of being labeled by the federal government as “hostile” environments. A single instance in any part of the university, to repeat, can cause the whole institution to receive this shameful label. This is close to soft tyranny, exercised over the most respected, but unfortunately the most timorous, of American institutions.

Although both the OCR and the universities pursue the feminist agenda, the difference is that the universities have a responsibility, in fact an urgent need, to maintain a friendly environment for the learning of all students. Their main task, which they sometimes forget, is to promote learning, not to punish immorality. And as to the latter, universities need to maintain a community that provides for the comity of both sexes, allowing for their differences so that both are reasonably satisfied.

Just now many American universities have too few males, sometimes as few as 40% of the students. This is an imbalance particularly harmful to the social life of women students, and universities have to be careful not to alienate the males they need to attract. In sum, universities need to look for a definition of the equality of the sexes that pleases both. They cannot turn the clock back to the “feminine mystique,” yet the main enemy of their search is the feminism that destroyed the mystique. “Mystique” implies romance, not such a bad thing perhaps. If only there were a better feminism with a touch of romance, a measure of allure, something to dance to.