A few days ago, David Lat broke the story of Lisa McElroy, the Drexel University law professor who sent her students a link to a porn video instead of a link to the “great article on writing briefs” that the rest of the message referred to. As David explained, there’s plenty of reason to think that McElroy inadvertently copied and pasted the wrong link and that her greatest sin amounts to nothing more than a particularly embarrassing failure to proofread. She certainly wouldn’t be the first person to make such a mistake. (Just ask ESPN analyst Gerry Hamilton.)
Nevertheless, Drexel put the professor on leave pending an investigation under the school’s sexual harassment and misconduct policy. David later interviewed Professor Michael A. Olivas of the University of Houston Law Center, an expert in education law. Professor Olivas explained why, under Title IX, universities have little choice but to undertake an investigation in situations like this. Title IX is, of course, the federal civil rights law that forbids sex discrimination at schools receiving federal financial support.
Lisa McElroy probably did not intend to create a hostile environment for anyone. She may not have actually offended most of her students. Common sense and compassion will probably lead to a quiet resolution to the case. I hope so.
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But what if Lisa McElroy were a man? Would observers be as quick to give the benefit of the doubt? If a male professor foisted anal-bead porn on an unsuspecting class of students, would we wonder, even if just a little bit longer, if he meant to do it? Would we be as forgiving, even if we concluded that the porn link was a terrible mistake? Would people argue that he created a hostile environment for his female students, no matter what?
There is a terrible irony that laws and policies created to prevent gender discrimination can treat members of one gender differently and unfairly. Under Title IX, determining whether allegedly harassing conduct is sufficiently severe or pervasive to create a hostile environment is supposed to be evaluated according to both a subjective and objective standard. But even the latter “reasonable person” standard may cut against men in a way that it would not against women. Even supposedly “reasonable” people are likely to view sexual conduct or comments as more aggressive, more threatening coming from a man than from a woman.
As a university employee, my personal experience with Title IX has been discouraging, frustrating, alienating. I have been recruited to join complaints against male colleagues, most recently against someone with whom I was friends outside of our workplace. I have, when I refused to be a complainant, been interviewed as a witness. I have, when interviewed as a witness, been grilled over a multitude of conversations and social interactions that took place away from campus, in the company of adults, that I never expected that I would one day have to explain in a formal setting.
I quickly realized that Title IX can be applied in ways that don’t tolerate ambiguity or, God forbid, a bawdy sense of humor. Policies prohibiting sexual harassment often lack the vocabulary to say, “Yes, he did say that, but we are friends,” and “No, I was not intimidated or offended by that.” Two categories emerge: either you are claiming victimhood . . . or you are considered suspicious until you can justify why the hell you did not feel victimized. Basically, you begin to sound nuts for not being offended.
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Title IX doesn’t make me feel safer. It makes me feel paranoid. I can hardly imagine how much more paranoid it makes my male colleagues.
I hope for a cool-headed, mature conclusion to the investigation of Professor Lisa McElroy and “Beadgate.” Under the tyranny of Title IX, however, I wouldn’t hold out the same hope if she were a man.
Earlier: Law Professor Who Sent Anal-Bead Porn To Her Students Now Under Investigation
A ‘Beadgate’ Update: Did Drexel Really Have To Investigate The Law Professor Who Accidentally Sent Porn To Her Students?
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].