BY THE AAUP TITLE IX SUBCOMMITTEE
The AAUP released on May 15 a response, prepared by a subcommittee of Committee A on Academic Freedom and Tenure and the Committee on Gender and Sexuality in the Academic Profession, to new Title IX regulations. Below is an executive summary of the response. The full response is available on the AAUP website.
The US Department of Education released on May 6 its final rule under Title IX of the Education Amendments of 1972. The American Association of University Professors had earlier submitted comments on the proposed revisions to the regulations in response to the secretary of education’s 2018 request.
Overall, we conclude that the regulations represent small steps forward in some areas and large steps backward in others. Parts of the new regulations will make it more difficult for victims of harassment to come forward and for the perpetrators to be held responsible, thus making it easier for harassment to be minimized. The standard for harassment has been overly narrowed, the responsibility of the university to address harassment has been excessively limited, and the evidence needed to prove harassment has been increased significantly. While the new regulations have expanded the protections for the accused, they do not directly address protections for the vital interests of the academic freedom. Improvements related to the burden of proof and some elements of due process, while welcome, are overshadowed by the overall regressive nature of the proposed regulations.
The AAUP’s specific comments include the following:
Defining Sexual Harassment
First, we object to the Department of Education’s retention of an overly narrow definition of hostile-environment sexual harassment. The final regulations define it as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive, that it denies a person equal access to the recipient’s education program or activity.” We recommended using a “severe or pervasive” standard because a hostile environment can be produced by severe conduct that is not pervasive and by pervasive conduct that is not deemed severe.
Second, we find in the final version no consideration of the ways gender equity intersects with other bases for inequality, including race, class, sexuality, gender identity, disability, and other dimensions of social difference.
University Responsibility
First, we object to the Department of Education’s retention of an evaluation of institutional compliance based only on the standard of “actual knowledge,” rather than that of “knew or should have known,” about sexual harassment.
Second, we object to the inclusion in the new regulations of a standard of “deliberate indifference” rather than “reasonableness,” as the Association recommended. According to the final regulations, “A recipient with actual knowledge of sexual harassment . . . must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response . . . is clearly unreasonable in the light of the known circumstances.” We note that defining deliberate indifference in terms of “unreasonableness” creates a way out for administrators who may want to avoid addressing charges of sexual harassment at their institutions.
Third, the regulations leave it to universities to decide whether to require “mandatory reporting” by all employees about information regarding possible sexual harassment or instead restrict that function to designated reporters. We recommended that the regulations prohibit university policies from making all faculty members mandatory reporters. Further, we note that administrators are not required to define “mandatory reporters” in consultation with faculty.
Fourth, the department did not adopt the Association’s recommendation that qualifications for any Title IX coordinator should include knowledge of and experience working within a university setting.
Fifth, we object to the department’s decision to eliminate the requirement that an educational institution seeking an exemption must submit a written statement to the department identifying the Title IX regulations that “conflict with a specific tenet of the religious organization.”
Academic Freedom
We object to the way in which the final regulations too narrowly define hostile-environment sexual harassment as speech or conduct that is “severe, pervasive, and objectively offensive.” At the same time, the regulations do not adequately protect faculty academic freedom. We object to the absence in the regulations of any reference to academic freedom.
Protecting Due Process
The Department of Education leaves it to a university to determine the standard of evidence to be applied in sexual harassment cases (either preponderance of evidence or clear and convincing evidence.) It further specifies that the standard chosen need not be the same as that used in other cases not involving sexual harassment. We find that, although the AAUP had recommended “clear and convincing evidence” as the best standard, the final regulations appear to be an improvement because they enable universities to adopt the “clear and convincing” standard in sexual harassment cases.
We object to the absence in the new regulations of any requirement that universities implement AAUP-recommended due-process protections in cases involving faculty members.
Some Final Comments on Political Hypocrisy
Finally, we note the enormous hypocrisy with which the Department of Education has heralded its new regulations as a gift from President Trump to America’s students: “PRESIDENT DONALD J. TRUMP IS WORKING TO PROTECT STUDENTS FROM SEXUAL MISCONDUCT AND RESTORE FAIRNESS AND DUE PROCESS TO OUR CAMPUSES.” But these regulations come from a President who has never been formally called to account for his alleged sexual misconduct and for the (bad) example it sets for the nation’s youth. Some readers of these new regulations will argue that they unduly protect harassers and the hostile climates they create. We conclude that the department’s emphasis on President Trump as the standard-bearer for sexual harassment regulations is likely to confirm those arguments.
Needless to say, we have not all learned to use the word “alleged” and NOT to use words like “victim” or “perpetrator” — instead of accuser and accused. These semantic differences are at the base of some of the proposed changes in the sexual harassment policies.
Does anyone out there have a good response to what happened to the Duke U. lacrosse team — and its coach, who was not even present at the scene. Maybe these wrongful conviction cases make up only a small percentage of reported incidents, but don’t the accused have the same rights as those accused of crimes, if they in fact are charged with crimes? (BTW, why aren’t ALL sexual charges referred to the local constabulary, the police?)
If you’re not familiar with the Duke case, here’s a summary:
https://en.wikipedia.org/wiki/Duke_lacrosse_case
No. Those accused of violating various university policies that may also violate the law, most certainly do NOT have the same presumption and protections as they have in a criminal prosecution. A criminal prosecution in which the accused may be deprived of his liberty, or even his life, is not the same as a disciplinary process at a university which, at worst, results in academic dismissal or dismissal from employment, two outcomes which are by no means trivial, but are also not nearly as severe as prison or the death penalty.
We have an epidemic of assault and harassment that has been tolerated for FAR too long and which puts excessive emphasis on the accused perpetrators rather than considering the life long trauma that rape, sexual assault, and harassment extracts from the victims. While many are fond of focusing on those rare cases of false accusations and miscarriages of justice, the numbers of actual assaults that never result in any accusation or process at all are, to my mind, far more serious.
Instead of training our students to “avoid being raped” we need to train them to “not rape.” One way to do that is to make it clear that accusations will be taken seriously rather than as an opportunity to put the victim on trial.
Evidence of an “epidemic” of assault & harassment? I’m not being snide and that is not a rhetorical question. It is a request for information, which I assumed would be valued on an academic website.
Again, Tamara P. uses the loaded words “victim” instead of accuser. No matter how many false accusations there are or actual perpetrators who get off, each one should be investigated thoroughly. It’s a tad cavalier to write off “miscarriages of justice” because the penalties are not as severe as a prison sentence. In fact, as noted elsewhere, I’d just as soon having the criminal justice system handle CRIMINAL cases, in part because a severe sentence may discourage some potential sexual offenders.
It’s also a bit cavalier to just play a “numbers game” and assume that the accused are more often than not guilty. I’ve read articles that state that 5-10% of sexual abuse cases are false, although they almost never contain any actual statistics. most mention that accusers are often loath to report an accused person. Even if it’s only a small percentage of false claims, the accusers AND accused should be “taken seriously” and accorded rights and due process.
The Duke lacrosse case was primarily about a corrupt local prosecutor. The lacrosse team did do some pretty disturbing things (like hiring strippers for a team party, or one player who wrote to the team, “I plan on killing the bitches as soon as the[y] walk in and proceding to cut their skin off while cumming in my duke issue spandex”) even if you think a sexual assault never happened. The major problem with Duke’s response was suspending the team before holding a hearing, but I’m not sure if the new Title IX rules address that common problem of punishment before proof.
The fact that the Duke lacrosse team situation was caused by a prosecutor is not the issue. Can’t a university committee be just as misguided, influenced by campus climate, and even corrupt as a D.A.? isn’t the best way to combat injustice to give EVERYONE as many rights as possible?
As to the team member’s hiring of strippers for a party and use of offensive language, I don’t believe that those are crimes, although — again — nowadays people are willing to use anything to condemn someone they are predisposed against.
The phrase — “even if you THINK a sexual assault never happened” –is a loaded one, since it was DEFINITIVELY PROVEN that the charges against the athletes were false and they were declared “innocent,” a rare acknowledgement in jurisprudence since the legal standard is usually either “guilty” or “not guilty.”