New AAUP Report: “The History, Uses, and Abuses of Title IX”

BY RISA LIEBERWITZ

Yesterday, AAUP posted for public comment a draft report, “The History, Uses, and Abuses of Title IX.” This extensive report, an evaluation of the history and current uses of Title IX of the Education Amendments of 1972, is a joint effort authored by a subcommittee (which I chaired) comprised of members of the AAUP’s Committee on Academic Freedom and Tenure (“Committee A”) and the Committee on Women in the Profession (“Committee W”).

You can find the executive summary and the full report at: http://www.aaup.org/report/history-uses-and-abuses-title-ix. Comments on the report should be sent, by April 15, to the AAUP’s national office: titleIX@aaup.org. The drafting committee will review all comments received and issue a final version of the report later this spring.

As the report states:

There is no necessary contradiction between effectively addressing problems of sexual harassment (assault, inappropriate conduct and unprotected speech) and fully protecting academic freedom. AAUP policies consistently have condemned sexual harassment while emphasizing the need for universities, through shared governance, to adopt clear and fair policies and procedures pertaining to sexual harassment. Such university policies and procedures should respect academic freedom and due process rights and should seek not only to respond appropriately to sexual harassment, but also to prevent it.

This new AAUP report was needed, however, to analyze the growing tensions between current interpretations of Title IX and academic freedom essential for campus life to thrive. In particular, questions of free speech and academic freedom have been ignored in recent positions taken by the Office for Civil Rights (OCR) of the Department of Education (DOE), which is charged with implementing Title IX, and by university administrators who are expected to oversee compliance measures. The report concludes with recommendations—based on AAUP policy—for how best to address the problem of campus sexual assault and harassment while also protecting academic freedom, free speech, and due process.

The AAUP report recognizes the importance of recent student and faculty activism that has focused renewed attention on sexual harassment and assault within universities and has placed increased pressure on them to comply with Title IX of the Education Amendments of 1972. These more forceful efforts to apply Title IX, however, have had uneven results. Some campuses have dealt with sexual assault more seriously and effectively, while others report cases in which university administrators fail to punish gross and repeated sexual harassment. Other problems have arisen, as well, due to interpretations of Title IX that disregard academic freedom, due process, and shared governance.

One source of the problems, the report finds, is the OCR, which has adopted overly broad definitions of sexual harassment – as an issue apart from sexual assault – that interfere with protected speech and academic freedom. Another source of the problem is found in university administrations’ responses to OCR’s actions. As the report states:

The sharp increase in the number and scope of OCR’s investigations and findings that universities have violated Title IX has brought greater public attention to OCR’s heightened scrutiny, not only of sexual assault on campuses, but also of speech that includes sexual references of any kind. This has led to a frenzy of cases in which administrators’ apparent fears of being targeted by OCR have overridden faculty academic freedom and student free speech rights… [The cases] involve teaching, research, extramural speech and governance.

Compounding these problems, OCR has mandated a change in evidentiary standards that conflicts with due process protections of faculty and students. In its 2011 “Dear Colleague Letter,” OCR prohibits universities’ use of a “clear and convincing” (or, highly probable or reasonably certain) evidence standard, requiring instead the use of a “preponderance of evidence” (more likely than not) standard to assess sexual violence claims, and by extension, all sexual harassment claims. Universities, citing the need to comply with OCR interpretations, have adopted the lower standard of due process in investigations and hearings of Title IX complaints.

The AAUP report describes recent cases in which university administrators’ apparent fears of being targeted by OCR have overridden faculty academic freedom, due process, and shared governance. These include widely reported cases: Northwestern University’s Title IX investigation of Professor Laura Kipnis, based on student complaints that her Chronicle of Higher Education piece, “Sexual Paranoia Strikes Academe,” was retaliatory for making passing allusion to other sexual assault and harassment cases on the campus; University of Colorado-Boulder administrators’ punitive actions against Sociology Professor Patty Adler, based on student complaints that her teaching methods in her class, “Deviance in US Society,” constituted sexual harassment; Louisiana State University administrators’ termination of Associate Professor Teresa Buchanan for use of profanity or sexual references in her teaching. In both Adler’s and Buchanan’s cases, the university administrators’ actions overrode faculty governance committees’ findings that opposed the punitive measures.

The AAUP report places these developments in the broader context of the increasingly bureaucratic and service-oriented structure of the “entrepreneurial” (or “corporate”) university, characterized by a client-service relationship between universities and their students. This client-service model can run counter to universities’ educational mission when, as in the case of Title IX, universities may take actions that avoid OCR investigations and private lawsuits but that do not significantly improve gender equity. This client-service model, in turn, has serious implications for academic freedom, as universities create administrative offices that make and enforce Title IX policies outside of shared governance processes.

Further, the AAUP report raises concerns that the current interpretation, implementation, and enforcement of Title IX can actually exacerbate gender and other inequities on campus. Recent student activism protesting institutionalized racial biases in universities reveals the need to ensure that Title IX enforcement initiatives do not, even unwittingly, perpetuate race-based biases in the criminal justice system, which disproportionately affect men who are racial minorities.

The report directs its recommendations to OCR, university administrations, and faculty.

Recommendations for OCR include the need to fully protect academic freedom, free speech, and due process; to exempt faculty from serving as mandatory reporters under Title IX; and to work constructively with colleges and universities to develop Title IX policies and procedures.

For university administrations, the report recommends incorporating AAUP language on academic freedom into Title IX polices; including faculty governance in all stages of Title IX policy development, implementation, and enforcement; coordinating Title IX enforcement with the criminal justice system; considering restorative justice practices for some forms of prohibited misconduct; addressing all forms of inequality on campus, including inequalities of race, gender identity, class and sexual orientation; and fulfilling the educational mission to support teaching and research on inequality.

Recommendations for faculty include the importance of participating in the furtherance of shared governance, academic freedom, and due process. The report recommends that faculty disseminate these AAUP recommendations and consult with their AAUP chapters on how to best address these issues on their home campuses. The report’s final recommendation reminds us of the importance of faculty joining with students towards our common interests in promoting equality:

As educators and researchers on the frontlines of these debates, faculty must act in solidarity with student attempts to alleviate campus inequalities. This will best be accomplished through robust participation in governance and a dedicated and unwavering defense of academic freedom that exists not in opposition to the concerns that motivate current Title IX actions, but in solidarity with them.

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