JOHN K. WILSON
The AAUP recently issued a draft report on “The History, Uses, and Abuses of Title IX” and requested comments that are due today, April 15 (send comments to titleIX@aaup.org). I’ve been putting off my response because I feared that I would have to write a lengthy critique. But it turns out the report is incredibly well-written and covers virtually every important point on this subject. So here are my minor comments:
The AAUP ought to state that a college campus is not simply a workplace; it contains some elements of a workplace, but it is also a community where extramural speech and conduct should not be judged by the standards of an office. Even more important, to the extent that a college campus is like a workplace, it is a very special kind of workplace. Under discrimination law, there is an important exception for business necessity. That’s why, for example, strip clubs can’t be put out of business by sexual harassment lawsuits based on the hostile environment to women of strip clubs, even though a similar environment in an office might be actionable. A university is not a strip club; but it is a workplace where freedom of speech is crucially important to the work it engages in. Therefore, offensive speech requires much greater latitude in the unique environment of a college campus than it does in the typical workplace. Offensive ideas are sometimes part of the essential work done on college campuses.
In the Laura Kipnis case at Northwestern, the AAUP report notes that “university administrators understood OCR rules to mean that once a complaint (however questionable) had been filed, an investigation had to be pursued.” The AAUP should explicitly state that the Office of Civil Rights (OCR) needs to inform universities that while all complaints need a response, not all of them need an investigation (which can have a chilling effect on free speech). Sometimes, an immediate dismissal without extensive investigation is the proper response to a complaint that does not meet the standards of discrimination.
Finally, OCR needs to be clearer that a violation of Title IX requires systematic discrimination. Having a policy that someone in the federal government doesn’t like, or making a mistake in a detail of procedure during one case, should not be tantamount to a violation of federal law. Colleges should not fear losing federal funding if they follow the (very good) advice of the AAUP rather than the (often flawed) advice of OCR.