BY RISA L. LIEBERWITZ

The AAUP submitted comments today on amendments proposed by US Department of Education to the regulations governing the implementation of Title IX, the federal law prohibiting sex discrimination in federally funded education programs. The AAUP responded, in particular, to a question posed by the education department about “the applicability of the rule to employees… [and] whether there are any parts of the proposed rule that will prove unworkable in the context of sexual harassment by employees, and whether there are any unique circumstances that apply to processes involving employees that the Department should consider.” The AAUP’s comments are directed to the “unique circumstances” of faculty in higher education.

The education department’s proposed regulations ultimately fail to specify the importance of academic freedom and shared governance for Title IX proceedings. Moreover, we object to proposed regulations that unduly narrow the scope of protections against sexual harassment. As our 2016 report “The History, Uses, and Abuses of Title IX” notes, while colleges, universities, and the education department focus on the sexual dimensions of sex discrimination, the plain language of Title IX is meant to protect those on campus more broadly from unequal access to educational resources, wage disparities, and inequitable representation across the university system. To these ends, we caution against the extraction of gender equity from more comprehensive assessments of the bases for inequality—including race, class, sexuality, disability, and other dimensions of social difference—both on and off campus. While some of the education department’s proposed regulatory changes technically comport with recommendations made in the AAUP’s 2016 report, we emphasize that narrow agreement on a legal rule or standard is not indicative of agreement about what counts as inequality and how to redress it.

The AAUP encourages the education department, as well as colleges and universities, to take note of the recommendations in our Title IX report and to work to improve the working and learning conditions of all campus constituents. Such improvements should include fully committing to interdisciplinary learning on campus by adequately funding gender, feminist, and sexuality studies, as well as allied disciplines, as part of an effort to teach about all forms of inequality, including inequalities based on race, gender identity, disability, class, geographic location, and sexual orientation.

The AAUP’s comments urges the education department to adopt regulations that do the following:

• Define sexual harassment broadly enough to prohibit conduct that creates a hostile environment
• Protect freedom of speech and, in particular, academic freedom of faculty in their teaching and research
• Protect due process in investigations and hearings
• Endorse shared governance to bring faculty expertise and institutional knowledge into developing and implementing policies related to Title IX

Click here to read the full Executive Summary of AAUP’s response to the proposed changes to Title IX.

Risa L. Lieberwitz is professor of labor and employment law in the Cornell University School of Industrial and Labor Relations and general counsel of the AAUP.