Title IX Tramples Free Speech and Fairness, So Now What?

Apr 05, 2016 |  Peter Wood

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Title IX Tramples Free Speech and Fairness, So Now What?

Apr 05, 2016 | 

Peter Wood

Editor's Note: This article was originally published by Minding The Campus on April 3, 2016.

The American Association of University Professors (AAUP) has just dipped its oar in the dank water of Title IX.  The AAUP’s draft of its new document, The History, Uses, and Abuses of Title IX, leaves much to be desired.  But welcome to the fight, AAUP.  We’ve been wondering when you would show up.

From 1972 to Now

A refresher.  How did we get here?

Title IX is Title IX of the Higher Education Act, which was added to the 1965 Act as part of its 1972 reauthorization. The key sentence in it is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

That seemed simple enough at first. Don’t discriminate against men or women on the basis of their sex, you American colleges or universities, or we will cut off your federal funds. “Financial assistance” referred primarily to federally guaranteed students loans, codified as Title IV of the Higher Education Act. By 1972, almost all colleges and universities had become addicted to the money flowing in from those loans.  The loans officially went to the students, but the dollars went to the college bursar offices, and the colleges had to be pre-approved by the Department of Education as worthy recipients.

So Title IX had instant clout. But it was also a bit murky.  Clearly it didn’t apply to single-sex institutions.  What forms of discrimination did it legislate against?  The answer emerged slowly, first through regulations issued by the Department of Health, Education, and Welfare in 1975 and later through litigation. The 1975 regulations suddenly made it clear that Title IX was going to be used to advance women’s sports on campus. But it took years of litigation to arrive at what Title IX would really mean: the destruction of many men’s sports teams to ensure that women’s sports were in parity with men’s sports.

Title IX soon began to grow in new and unexpected directions, sometimes in conjunction with court decisions that didn’t initially appear to have anything to do with higher education.  A good example is the Meritor Savings Bank v. Vinson U.S. Supreme Court decision of 1986, which defined “hostile environment” for sexual harassment cases under Title VII of the 1964 Civil Rights Act.  It would take several more decisions and some creative thinking on the part of regulators to get to the idea that wherever an environment can be described as “hostile” there also is a Title IX discrimination case waiting to be framed and fitted out.

“Hostile environment” was supposedly limited by the Supreme Court in Davis v. Monroe County Board of Education in 1999 to “severe, pervasive and objectively offensive” sexual harassment, but OCR has seen no need to get so fussy.  It sees “hostile environments” created by harassment pretty much wherever it likes.

Complaints about how Title IX now runs roughshod over due process, academic freedom, and basic fairness are now legion. The basic picture is that the mere expression of some words and ideas is now at risk of being conjured into a Title IX complaint on the grounds that those words and ideas make some people uncomfortable.

Dissents

My organization, the National Association of Scholars, has been criticizing the new Title IX regime for years.  We also have an older history of wrestling with the excesses of the feminist-inspired attacks on academic freedom. NAS isn’t alone in this.  FIRE is a stalwart ally, among others. NAS’s 2014 “Compendium of Key Sources” on sexual assault provides a good summary as well as a gateway to other materials.

The AAUP has also on previous occasions ventured into this topic, most notably in its 2012 “Campus Sexual Assault: Suggested Policies and Procedures.” But the AAUP’s brand new statement ventures in a somewhat unexpected direction.  It seems, at least to some of its first readers, like a stronger check on OCR policies.

“A Slew of New Problems”

The History, Uses, and Abuses of Title IX impressed The New York Times,  Inside Higher Ed and The Chronicle of Higher Education the same way:  as a complaint that Title IX rules have gone too far and are stifling free speech.

The New York Times leads with “broadening definitions of inappropriate sexual behavior” having “a chilling effect on academic freedom and speech.”

Inside Higher Ed leads with the Office for Civil Rights (OCR) creating “a slew of new problems with implications for free speech and academic freedom.”

The Chronicle of Higher Education headlines, “AAUP Slams Education Department and Colleges Over Title IX Enforcement,” and leads with the sexual assault rules that “trample faculty members’ rights to academic freedom, due process, and shared governance.”

All three see the AAUP as boldly stepping forward to declare that the Title IX enforcement regimen has gone too far.  It is now chilling/compromising/trampling free speech—which doesn’t sound especially good.  Has the AAUP suddenly come to the realization, long since achieved by millions of other Americans,that Title IX rules and enforcement have gone crazily overboard?

Let’s not be hasty.

Two of the journalistic watchdogs of higher education are quick to add zag to their zig:

The New York Times: The AAUP “does not mean to underestimate the gravity of sexual harassment complaints.”

Inside Higher Ed: “The Office for Civil Rights brought needed attention to the problem of sexual assault and harassment on college campuses.”

The Chronicle of Higher Education, however, sticks closely to the theme that the AAUP has launched a relentlessly tough-minded criticism of OCR’s Title IX overreach.

What’s the truth of the matter?  Has the AAUP consulted its moral compass and found the true north of presumption of innocence, due process, fair treatment of the accused, respect for evidence, and freedom of expression?  Or has it offered a temporizing defense of some of its principles some of the time, provided that they don’t get in the way of the feminist social justice agenda?

Feminists Burnt by Feminism

Alas, when we turn to the report itself, it is more the latter.  The major problem that the AAUP raises with Title IX rules is that they have more than once been turned against well-meaning women’s studies professors and other campus feminists. The “abuses” signaled in the title of the report exist at an abstract level for much of the report: “OCR has given only limited attention to the due process rights of those accused of misconduct.” [p. 17] But when AAUP gets down to specifics, we hear very little of the hapless male students thrown under the Title IX bus on flimsy or no evidence.

Instead we have accounts of the travails of Professor Patty Adler at the University of California, Boulder, who was Title IX’d for having her undergraduate teaching assistants in her Sociology class, “Deviance in US Society,” act out roles in class as “Eastern European ‘slave whore,’ pimp, a ‘bar whore,’ and a high-end escort.”  For this Professor Adler found herself accused by students of sexual harassment and was pressured by her dean to accept an early retirement.  The dean eventually backed down but Adler, “deeply affected by the chilling academic freedom climate,” retired anyway after one more semester.  [pp. 23-24]

AAUP’s second example: Louisiana State University early childhood education professor Teresa Buchanan, drummed out of her job after complaints from students about her “salty language.” Some of her students, preparing for careers teaching very young children, didn’t care for “F*** no” interjections, her use of “a slang term for vagina that implies cowardice,” and similar indiscretions.  Buchanan defended herself saying, “The occasional use of profanity is not sexual harassment.” But Title IX rules are pretty tough.  Buchanan is suing. [pp. 24-25]

Not So Fun Home

Another incident the AAUP draws attention to is the closing of Center for Women’s and Gender Studies at the University of South Carolina Upstate.  The closing “coincided” with controversy about the use of the “lesbian coming-of-age story,” Fun Home, as a common reading at the university. Fun Home had garnered “trigger warnings” at three other colleges, and a Title IX administrator at a university in another state in a previous year had issued a memo that warned that some students might have had “traumatic experiences” that teachers using “materials containing instances of violence related to power, control or intimidation” should take into account.

So, a memo by a Title IX administrator at a university in one state; a “trigger warning” on a book in three other universities in different states; and the closing of a Women’s Studies center at yet another university add up to what?  In the AAUP’s audacious analysis: “the fact that the serious study of sex and sexuality are becoming increasingly vulnerable fields of study.”

Kipnis’ Conniption

The AAUP report also devotes some attention to Northwestern University Professor Laura Kipnis, who was Title IX investigated after some students took umbrage at her article in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe,” in which Kipnis leveled some criticisms at the “new paradigm” of sexual harassment rules.  In the article Kipnis styled herself a strong feminist:

For the record, I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square. Let no one think I’m soft on harassment. But I also believe that the myths and fantasies about power perpetuated in these new codes are leaving our students disabled when it comes to the ordinary interpersonal tangles and erotic confusions that pretty much everyone has to deal with at some point in life, because that’s simply part of the human condition.

But Kipnis ended up fighting—in the AAUP’s words—a “bureaucratic ordeal” or in her own words, a “Title IX Inquisition.” Kipnis won, but clearly Title IX was being put to uses that feminists didn’t intend.

Male Victims

The AAUP does find some male victims of Title IX. A University of Kansas student had to fight expulsion after he made tweets on his private account deriding his former partner as a “psycho bitch.” Chemistry professor Craig Anderson was Title IX’d after a lab assistant accused him of using aggressive and vulgar language. The AAUP rushed to his defense because Bard College failed to provide him due process. On the other hand, Title IX completely failed to catch University of California Berkeley astronomer Geoffrey Marcy, who met his comeuppance as a repeat harasser only when BuzzFeed broke the story.

There is a great deal more to say about the AAUP’s statement, issued as a “draft” and presumably open for further changes. But one thing at a time. The one thing to start with is that the AAUP is mostly upset that the new Title IX rules are producing “friendly fire” casualties. It was meant to punish men, regardless of their guilt or innocence. To accomplish that it set the evidentiary bar so low that some women faculty members are tripped by it as well.

Some of the cases the AAUP cites make that point well enough. Others entail some stretching. But the main thing is that AAUP has paid so little heed to the larger story of Title IX tyranny: the rise of bureaucrats that can and do ruin the educational careers of male students and some faculty members on the basis of unsubstantiated allegations and sometimes even in the face of exculpatory evidence.

The Distant Shore

I am, on balance, happy that the AAUP has decided to dip its oar in these waters.  It is better that it is half-heartedly alarmed about the rolling disaster of Title IX regulation than it sit back in smiling approbation of the new regime. But I don’t think the AAUP’s oar will propel us very far across the fetid lake. AAUP doesn’t like Title IX’s collateral damage. It is rather less concerned with its main targets.  What we really need is a thorough housecleaning at OCR; the retraction of the noxious “Dear Colleague: letters; and in due course the abolition of OCR itself, which has been a deep and continuing source of injustice in higher education.

 

Image: Golden Lady Justice by Emmanuel Huybrechts // CC BY

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