In a new report, the American Association of University Professors raises questions about Title IX. From the executive summary:
While successful resolutions of Title IX suits are often represented as unqualified victories in name of gender equality, this report finds that the current interpretation, implementation, and enforcement of Title IX has compromised the realization of meaningful educational goals that lead to sexually safe campuses. Since 2011,
deployment of Title IX has also imperiled due process rights and shared governance. This report thus emphasizes that compliance with the letter of the law is no guarantee of justice, gendered or otherwise.
Specifically, this report identifies the following areas as threats to the academic freedom essential to teaching and research, extramural speech, and robust faculty governance:
- The failure to make meaningful distinctions between conduct and speech or otherwise distinguish between hostile environment sexual harassment and sexual assault.
- The use of overly broad definitions of hostile environment to take punitive employment measures against faculty for protected speech in teaching, research, and extramural speech.
- The tendency to treat academic discussion of sex and sexuality as contributing to a hostile environment.
- The adoption of lower evidentiary standards in sexual harassment hearings, i.e. the “preponderance of evidence” instead of the “clear and convincing” standard.
- The increasing corporatization of the university, which has framed and influenced universities’ implementation of Title IX.
- The failure to address gender inequality within a broader assessment of its relationship to race, class, sexuality, disability, and other dimensions of social inequalities.
At Michigan Technological University in November, 2015, a student publication was placed on probation for two years and denied part of its funding after publishing a satirical article about a fictional sexually harassed man. The university stated that even though it was clear the article was a satire, it might be construed as “advocating sexual violence.” If such an interpretation were possible, administrators maintained, then Title IX required the action it had taken. The Vice President for Student Affairs insisted that the Constitution did not “supersede” it. “Title IX is a federal compliance policy. Those policies supersede anything else.”68 This comment exemplifies the power OCR regulation can exercise over university officials, who tend to interpret Title IX in the most restrictive ways possible -- even if it means contradicting common sense as well as constitutional law.
Such ad hoc disciplinary actions against students over extramural speech controversies demonstrate the way that overly broad definitions of hostile environment harassment work at cross-purposes with the academic freedom and free speech rights necessary to promote learning in an educational setting. Learning can be best advanced by more speech that encourages discussion of controversial issues, rather than by using punitive administrative and legal fiat to prevent such discussions from happening at all.
68. Madeline Will, “Student Satire Publication Lost Funding, Put on Probation After Article on Sexual Harassment,” The Student Press Law Center (SPLC), December 15, 2015. http://www.splc.org/article/2015/12/student-satire-publicationlost-funding-put-on-probation-after-article-on-sexual-harassment