Title IX of the Education Amendments Act of 1972 is federal law. It proclaims:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The AAUP (2016) report, The History, Uses and Abuses of Title IX provides an extensive review of the law, its interpretation, implementation, and consequences. It was authored by a joint subcommittee composed of members of the Association’s Committee A on Academic Freedom and Tenure and the Committee on Women in the Academic Profession. The report criticizes both the Office of Civil Rights (OCR) of the Department of Education and college and university administrations for their inconsistent and indelicate efforts to implement Title IX rules. In its “Dear Colleague” letter in 2011, the OCR conflated hostile environments with sexual assaults. The breadth and lack of clarity in the OCR guidance does not distinguish speech that creates a hostile environment from speech that is protected by academic freedom. Thus, the AAUP report concludes:
“While increased attention to eliminating sexual misconduct is certainly warranted, the OCR’s recent interpretations of Title IX and the sometimes overzealous implementation of the law by administrators anxious to preempt government disciplinary action have defined sexual harassment so broadly as to undermine academic freedom and due process… the OCR’s recent interpretations conflate speech and conduct—particularly with regard to defining hostile environments—and give little, if any, attention to rights of free speech, academic freedom, and due process.” (p 73).
In a bevy of recent cases, faculty members appear to have been punished for speech that should have been protected by academic freedom. A common administrative strategy is to identify and isolate or punish individuals charged with creating hostile environments. In 1980, the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII of the 1964 Civil Rights Act which prohibited discrimination in employment, defined two distinct types of sexual harassment: 1) quid pro quo and 2) hostile environment discrimination. Quid pro quo harassment is using one’s organizational power or position to demand sexual favors in exchange for employment benefits. Clearly, such behavior should be considered in the same bailiwick as other intentional acts of sexual coercion and assault. In contrast, hostile environment harassment, need not be explicit or even intentional. Any speech or conduct relating to a person’s sex, race, ethnicity, etc. that creates an environment perceived as being so infused with hostility that it unreasonably interferes with an individual’s full participation in the workplace (or educational activity under Title IX) can be considered harassment. The fact that such discriminatory conduct could be established by “purpose or effect,” indicates that intent (or even awareness) by the accused is not necessary. The differences in power between students and faculty members was often assumed to create situations where such oppressive and discriminatory hostility might occur.
“Under Title IX (as under Title VII), hostile environment claims are to be analyzed based on objective factors (whether a “reasonable person” in the complainant’s position would find the conduct offensive) and subjective factors (whether the complainant found the conduct offensive). But under Title IX, determination of the weight of these factors and of the balance between them has become skewed in recent years to overemphasize subjective responses to sexual conduct or speech.” (AAUP, 2016, p. 76)
It is understandable why administrations would do whatever is possible to prevent sexual assaults on college campus. Increased attention to the problem as well as increased social support through movements such as #MeToo have raised awareness and sensitivity to issues that were ignored in the past. To many, the increased reporting about the issue has created the impression that our campuses are becoming increasingly dangerous places for young women. However, as Pinker (2018) points out, society in general and college campuses in particular, have made considerable progress over the last 30 years.
“Violence against women is best measured by victimization surveys, because they circumvent the problem of under-reporting to the police; these instruments show that rates of rape and violence against wives and girlfriends have been sinking for decades and are now at a quarter or less of their peaks… Too many of these crimes still take place, but it is encouraging that heightened concern about violence against women is not futile moralizing but has brought measurable progress…” (p. 220)
Heather MacDonald’s (2018) The Diversity Delusion; How Race and Gender Pandering Corrupt the University and Undermine Our Culture contains four chapters concerning gender issues on contemporary college campuses. In the first of these, the Campus Rape Myth, she provides both evidence and argument that the public perception of rising levels of sexual assaults on campuses are more political than empirical. And yet, what is perceived as being real can become real through its consequences. The perceived urgency of protecting young women from the purported rising tide of sexual assaults has led to increasing regulation and restriction aimed at enhancing ensuring their safety. Combining sexual assault with all forms of sexual discrimination in a single category of “sexual misconduct” is misleading. When the always-believe-the-victim maxim is applied to all allegations of sexual misconduct, administrative due process, academic freedom, and freedom of speech are jeopardized.
To tip the scales to favor victims of sexual assault on campus, the OCR indicated that the “clear and compelling” standard of evidence that had been the tradition for establishing guilt by campus administrative proceedings should be replaced by the much lower, “preponderance of evidence” standard. This was extended, almost automatically to cover both types of sexual harassment violations. The OCR guidance concluded that procedures using a “clear and convincing” evidence standard did not comport with a Title IX regulation (AAUP, 2016, p. 78). Many educators expressed concern about the overreach of the new regulations and the effect they would have on the quality of education. Harvard Law Professor, Jeannie Suk, expressed her view in the New Yorker (2015):
“We are all fallible—professors, students, and administrators—and disagreement and competing narratives will abound. But equating critique with a hostile environment is neither safe nor helpful for victims. We should be attentive to our history and context, and be open to believing, disbelieving, agreeing, or disagreeing, in individual instances, based on evidence.”
The AAUP Report (2016) takes a similarly strong stand asserting the essential role that academic freedom and freedom of speech play in higher learning:
“The presumption that students need to be protected rather than challenged in a classroom is at once infantilizing and anti-intellectual. It makes comfort a higher priority than intellectual engagement… it singles out politically controversial topics… Indeed, if such topics are associated with triggers, correctly or not, they are likely to be marginalized… by faculty who fear complaints for offending or discomforting some of their students… (p 83) …The chilling effect such requirements pose constitutes a serious threat to academic freedom in the classroom.” (85)
Laura Kipnis (2015b) had expressed similar views when concluding her defense of her actions in publishing an essay critical of her administration’s new regulations concerning consensual relationships between students and faculty members at a faculty hearing at Northwestern School of Communication: “[F]or the record, . . . this isn’t retaliation. It is intellectual disagreement… [W]hat’s the good of having a freedom you’re afraid to use?”
Many administrations have implemented Title IX procedures independent of policies relating to academic freedom and administrative due process. When asked about the role of “academic freedom” in discharging her duties as Title IX Coordinator at Berea College, the Program Coordinator’s retort was a simple, “That’s not my job!” Attitudes such as this are not uncommon and directly imperil a university’s educational mission. The AAUP Report (2016, p. 92) opines: “There is no necessary contradiction between effectively addressing problems of sexual harassment… and fully protecting academic freedom.” However, the results of a recent survey of attitudes about academic freedom and hostile environment protection at Berea College suggests otherwise. When asked explicitly the extent to which they supported freedom of speech and protection from hostile environments, survey respondents scores were significantly positively correlated (r=.21*). However, their implicit bias index derived from their responses to 20 ecologically valid, situational judgement tasks revealed a different relationship. Respondents were asked to decide if each of a series of hypothetical situations violated college prohibitions against the creation of hostile environments. They were then asked whether the activity described would be protected by academic freedom; the correlation was strongly negative (r= -.61**). Similarly, when hostile environment and academic freedom ratings of each respective scenario were plotted, the correlation between scenarios on these two criteria was -.87**. This is strong evidence that perceiving a situation as being a “hostile environment”, predisposes one to assume that it would not be protected by academic freedom. Title IX Training Programs designed to increase awareness of hostile environments seldom mention academic freedom. Nonetheless, it would not be unreasonable to suspect that those who become more sensitive to hostile environment violations are likely to become less supportive of academic freedom and less likely to see it applying to situations they encounter on campus. This will enhance the chilling effect Title IX is already having throughout higher education.
The AAUP Report closes with many recommendations, most of them focused on the OCR and college and university administrations. As indicated earlier, the AAUP report concludes that inconsistent, contradictory, and patently unreasonable guidance from the federal government is a root cause of the confusion and conflict. The recommendations for administrations include incorporating AAUP language concerning academic freedom in all Title IX policies; including the faculty in all stages of Title IX policy development, implementation, and enforcement; considering the adoption of restorative justice practices especially for unintentional misconduct; and recognizing an administration’s inherent responsibility to support teaching and research on inequality. AAUP recommendations for faculty are more succinct: “Faculty members have a duty to engage in governance and to refuse demands to curtail or eliminate content or speech that is critical to achieving educational objectives” (p. 98).
The AAUP joint subcommittee was comprised of seven women and one man. It was composed mostly of faculty members drawn from the humanities, social sciences, and legal profession. There were several representatives of what have been pejoratively referred to as “grievance studies” and apparently no representatives from the physical, statistical, or mathematical sciences. Nonetheless, their conclusions clearly support the need for immediate attention and substantial reform.
Similarly, Greg Lukianoff and Jonathan Haidt (2018) go to great lengths to acknowledge the positive side of federal guidelines relating to Title IX in their recent book, The Coddling of the American Mind; How good intentions and bad ideas are setting up a generation for failure. However, they too conclude that vague and ill-considered federal guidelines threaten higher learning. They cite Laura Kipnis (2018a) to express their own conclusion:
“The feminism I identified with as a student stressed independence and resilience. In the intervening years, the climate of sanctimony about student vulnerability has grown too thick to penetrate, no one dares question it lest you’re labeled antifeminist.”
Legal scholars have also expressed concern about the issues raised by the persecution of Laura Kipnis. In Free Speech on Campus (2018), Erwin Chemerinsky, dean at UC, Berkeley School of Law, and Howard Gillman, chancellor and professor of law, political science, and history at UC, Irvine voice these concerns:
…there is reason to be deeply concerned about how the… Office of Civil Rights (OCR) is interpreting obligations on campuses, and whether it is forcing campuses to violate free speech guarantees. A months-long investigation of professor Laura Kipnis should not have been triggered by her publishing an article in a scholarly journal. The OCR should not have instructed the University of New Mexico to punish unwelcome “verbal conduct” of a sexual nature that did not amount to harassment. In light of these occurrences, the OCR should immediately clarify that campuses will not be at risk under Title VI or Title IX for failing to restrict or punish protected speech, and it should update its guidelines to ensure that no investigations are initiated… merely by an allegation that someone was upset by the expression of ideas or views” (p. 123).
Perhaps the most acerbic criticism of Title IX can be found in Robert Shibley’s (2016), Twisting Title IX. Noting that the courts have clearly established broad support for freedom of speech and academic freedom on college campuses, Shibley (2016) concludes that in order to be subject to Title IX sanctions, colleges:
“must be deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school” (p. 123)
Clearly, the Office of Civil Rights’ lack of clarity has created consternation and conflict on college campuses. However, administrators appear to have exacerbated these problems by selectively interpreting and applying parts of Title IX guidance and precedents to suppress unwelcome speech and quell campus dissent. The “chilling effect” noted above as a consequence of the threat of punishment and the uncertainty created by the complexity and inconsistencies in Title IX itself is not bereft of benefit to administrators seeking to establish sedate but seemingly “progressive” campus. Many of our colleagues and students, under the banners of fighting faiths such as third-wave feminism, post-modernism, and black lives matter, cannot be blamed for finding common cause with these administrators. After all, old white guys’ apparent arrogance often makes them easy targets…