Controversy and Confusion

An NAS Critique of the AAUP Response to the New Title IX Regulations

National Association of Scholars

On May 15, the American Association of University Professors (“AAUP”) released its Response to the Final Title IX Regulations issued by the Trump Education Department. Title IX is the federal law banning sex discrimination at schools receiving federal funds; it is an equal access law, originally designed to protect educational opportunity for women. Since its enactment in 1972, however, Title IX discussions have often focused on the law’s application to women’s sports and, now, on its application to campus sexual misconduct.

This latter area has generated considerable controversy - and confusion - in part because of the seriousness of the topic and in part because agency guidance and regulations to implement the law have been both unclear and, at times, overbearing. A prime example was the 2011 Dear Colleague Letter (“DCL”) from the Obama Education Department’s Office of Civil Rights (“OCR”), which announced that sexual harassment and sexual violence were forms of sex discrimination prohibited by Title IX.

Campus Title IX Offices were then tasked with seeking and punishing such behavior or losing federal funds.

This Title IX approach to campus sexual misconduct quickly became unworkable: Institutions receiving federal funds (“recipient schools”) felt pressured to find and punish sexual assailants, but some complainants claimed that campus officials still did not investigate allegations promptly or seriously. Meanwhile, those accused of sexual misconduct often said their due process rights were violated by Title IX Offices when they were denied the presumption of innocence or were not informed of charges against them or were summarily removed from campus without the opportunity to respond. More than 500 of these cases have ended up in court.

In September of 2017, Education Secretary Betsy DeVos rescinded the 2011 DCL and, in November of 2018, she proposed new regulations pursuant to the Administrative Procedures Act, which requires time for public comment. The final regulations were issued May 6 of this year and are scheduled to take effect August 14.

These final rules are no real surprise: They hew closely to those proposed in 2018 and also follow the last word on Title IX by the United States Supreme Court in the 1999 case of Davis v. Monroe County School Board. This precedent established a clear definition of what types of student-on-student sexual misconduct constitute sex discrimination in education for purposes of Title IX, including the category of what’s been called “hostile environment” discrimination. That definition reads: “unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive and objectively offensive” that it effectively denies a person equal access to education.

Also unsurprising is the requirement that recipient schools act promptly on complaints of sexual misconduct and that they offer complainants support, even if a formal investigation does not happen. The regulations allow representatives for both the complainant and the accused and, in higher education, recipient schools must: presume innocence, disclose allegations, share evidence, hold live hearings, allow cross-examination and preserve the right to appeal.

To most people, such measures seem modest, common sense, and reasonable.

In fact, the new regulations would also probably have appeared reasonable to the AAUP if its June 2016 Report on Title IX were its guide (see The History, Uses and Abuses of Title IX, AAUP Bulletin, June 2016 – hereafter “AAUP, History, June 2016”). In this document, AAUP recognized the threat to due process posed by agency action such as the 2011 DCL:

While increased attention to eliminating sexual misconduct is certainly warranted, the OCR’s recent interpretations of Title IX and the sometimes overzealous implementation of the law by administrators anxious to preempt government disciplinary action have defined sexual harassment so broadly as to undermine academic freedom and due process … OCR’s recent interpretations conflate speech and conduct—particularly with regard to defining hostile environment—and give little if any attention to rights of free speech, academic freedom and due process. (AAUP, History, June 2016 at p. 73) (emphasis added)

The National Association of Scholars is in strong agreement with most of this assessment.

It is for this reason that NAS is disappointed in the AAUP’s more recent communications on Title IX, which appear to be inconsistent with the concerns outlined above.

The following examines most of the provisions of the AAUP’s May 15 Response but also compares it with earlier AAUP documents—the AAUP, History, June 2016 and the AAUP Comment on Department of Education Proposed Rule of January 28, 2019).

NAS finds that while some parts of the May 15 Response are reasonable, others represent a curious about-face.

NAS agrees with AAUP’s Concerns regarding Academic Freedom, Free Speech, Mandatory Reporting, the Standard of Proof and Emergency Removal from Campus

Academic Freedom

NAS shares AAUP’s concern that Title IX and accompanying sexual harassment policies can threaten faculty academic freedom, the right of educators to be protected in speech and thought in their area of expertise to safeguard rigor and honesty in teaching, research and public discussion. Title IX has clearly been improperly invoked, both inside and outside the classroom, to threaten faculty who should have been protected by academic freedom but who were, instead, subjected to Title IX investigations or similar school discipline because their work touched on sexual themes. See AAUP History, June 2016 at p. 76; see also Comment on Department of Education Proposed Rule, by AAUP, January 28, 2019 at pp. 3-4 (discussing cases of Teresa Buchanan at Louisiana State University and Laura Kipnis at Northwestern University).

Mandatory Reporting

NAS also agrees that “mandatory reporting” is problematic. Such a policy, which the regulations leave to school discretion, would require all members of the campus community, including faculty, to report suspected sexual misconduct. In addition to the risk that teacher-student conversations may be “chilled” if a school is authorized to punish faculty who fail to report, such policies also increase the likelihood of a “police state” atmosphere on campus where overheard conversations can form the basis of a Title IX investigation.

Standard of Proof and Emergency Removal from Campus

Finally, NAS joins AAUP in favoring the higher burden of proof to determine responsibility for sexual misconduct—that is, that the evidence submitted to prove guilt of such a serious charge must be “clear and convincing,” rather than the lower burden, the preponderance of evidence. NAS likewise objects to the regulations’ provision on emergency removal from campus of anyone accused of sexual misconduct; the rules lack standards or metrics to ensure that such emergency removal is truly in the interest of safety.

**

In the following provisions of the AAUP Response, however, NAS notes that AAUP has changed course, perhaps even reversed course, on its concern for academic freedom, due process and free speech, to favor complainants alleging sexual misconduct in campus Title IX proceedings.

The Definition of Sexual Harassment: In 2016, the AAUP criticized the Definition of “Hostile Environment” Sexual Harassment as Too Broad and recommended the Supreme Court standard; It Now Criticizes the Supreme Court standard, complaining that it is “Overly Narrow”

In its May 15 Response to the new Title IX Regulations, AAUP objects, first, to their “overly narrow definition of hostile environment sexual harassment.”

As stated above, the regulations’ definition of hostile environment sexual harassment mimics, verbatim, the most recent word by the United States Supreme Court on Title IX, from the 1999 Davis case (requiring that conduct can only be subject to Title IX if it is “unwelcome sexual conduct that a reasonable person would determine to be so severe, pervasive and objectively offensive that it effectively denies a person equal access” to education).

This is actually just one category of conduct, however, out of three, that the regulations recognize as constituting sex discrimination for the purposes of Title IX: The first category is the “quid pro quo” proposition where a school employee conditions student advancement on sex (for example, requesting sex in exchange for higher grades, scholarships, or job opportunities), which, everyone agrees, is impermissible sex discrimination. The second category is the “hostile environment” category defined by the Davis language reproduced above. The third category is sexual assault, including dating violence, domestic violence or stalking, which the regulations define as inherently denying educational access. Offenses in this third category “are not evaluated for severity, pervasiveness, offensiveness or denial of equal educational access, because such misconduct is sufficiently serious to deprive a person of equal access.” (See Summary of Major Provisions of the Department of Education’s Title IX Final Rule, page 1.)

NAS notes that, with this third category of conduct, the regulatory definition of sexual misconduct that qualifies as sex discrimination is not only not “unduly narrow” but goes well beyond the Davis standard such that it may constitute serious administrative overreach: Many actions are serious in nature – theft, forgery, trespass – but if they do not affect a person’s access to education, they would not ordinarily trigger Title IX, the essence of which is to guarantee such access. In this sense, the new regulations’ definitions, especially the behaviors of the third category, are not only not “overly narrow,” but arguably too broad – perhaps even arbitrarily so, notwithstanding claims to the contrary by AAUP.

The AAUP’s ostensible focus is the second category, however, stating that it is unduly narrow because it should include unwelcome sexual conduct that is “severe or pervasive” rather than the Davis standard of unwelcome sexual conduct that is “severe, pervasive and objectively offensive.” AAUP explains:

[A] hostile environment can be produced by severe conduct that is not pervasive and by pervasive conduct that is not deemed severe. Single instances of misconduct need not be pervasive in order to create the hostile environment that denies equal access to education; pervasive misogyny (for example, ongoing sexually charged statements by a faculty member targeting individual students) is as discriminatory as are singles instances of severe misconduct. Our more flexible definition of sexual harassment is a more accurate one, which recognizes the variety of ways in which such harassment occurs. (AAUP May 15 Response, page 1) (emphasis added)

This endorsement of a “more flexible standard,” where not only non-severe pervasive acts should be viewed as creating a hostile environment, but also a single, severe act can be viewed as creating such an environment, contrasts starkly with the AAUP’s approach in mid-2016 where concerns for academic freedom and free speech were a counter-balance:

The issue of what constitutes a hostile environment has been contentious … but the higher education context raises distinctive issues, particularly when speech rather than conduct is in question. To what extent can speech be subject to the same regulations as assault, as has been increasingly the case in recent years? What are the consequences of such an equation in a college or university setting where a careful balance must be struck between an interest in preventing or punishing hostile environment sexual harassment and an interest in protecting academic freedom, free speech shared governance and due process? … These questions were considered central to Title IX enforcement in the last decades of the 20th century but have been pushed to the side at least since 2011. (AAUP History, June 2016 at pp. 75-76)

The OCR now conflates conduct and speech cases. The 2011 Dear Colleague Letter broadly defines sexual harassment under Title IX as ranging from the most serious conduct of “sexual violence” (including rape, sexual assault, sexual battery and sexual coercion) to a hostile environment based on speech … [with no] statements or warning about the need to protect academic freedom and free speech … (AAUP History, June 2016 at p.77)

Further, in carrying out compliance reviews, the OCR has broadened its description of sexual harassment in a way that limits the scope of permissible speech … The OCR [has] explained: “Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program’s based on sex, it creates a hostile environment. The Department of Justice has similarly weighed in with an expanded definition of sexual harassment … (AAUP History, June 2016 at p.77)

Additionally, the OCR’s compliance letter to the University of Montana explicitly stated that it defined hostile environment as being “severe or pervasive” rather than using the “severe and pervasive” definition the Supreme Court applied in interpreting Title IX in Davisthe OCR’s expanded definitions of sexual harassment and hostile environment have had a negative impact on academic freedom. ... (AAUP History, June 2016 at p.78)

The concern of the AAUP in mid-2016 was not that definitions of sexual harassment were “unduly narrow,” but that such definitions were “expanded” to the point of adversely affecting the competing interests of academic freedom and free speech.

What’s more, AAUP not only complained, in 2016, that the range of Title IX and sexual harassment definitions unrealistically included everything from criminal violence to subjectively offensive speech, but the AAUP criticized the 2013 OCR for finding the University of Montana noncompliant because OCR preferred the “hostile environment” standard of “severe or pervasive” rather than the Davis standard of “severe and pervasive.”

In short, AAUP is now advocating a “flexible standard” that it denounced in mid-2016 and is also now advocating the “severe or pervasive” standard it called, in mid-2016, “expanded” and “negative.”

NAS reminds that discrimination based on sex is most obvious and repugnant in the quid pro quo situation where a superior demands sex and promises benefits in return. This practice is universally condemned and for many years constituted the sole gravamen for complaints of sex discrimination.

The expansion of prohibited conduct to include what is now called “hostile environment” type discrimination is a much more amorphous category that, without clear demarcations, would leave students, families and Title IX recipient schools guessing about the extent of school responsibility to create a non-hostile environment. A “flexible definition” is precisely the type of amorphous, changing standard that confuses everyone; AAUP would do well to return to its 2016 support of the Davis standard.

With respect to the AAUP’s specific reference to “ongoing sexually charged statements by a faculty member targeting individual students” as an example of conduct that is pervasive but not severe and which could therefore be missed under the Davis standard, AAUP fails to mention other avenues of recourse for these individual students: Such conduct by a professor is clearly unprofessional and, if done to harass rather than to educate, is most likely banned by professional ethics codes, or by university contracts, or by faculty handbooks. Title IX is not the only vehicle to address problematic behavior; the attempt to expand it beyond educational access is surreptitious, counterproductive and harmful, as the years since 2011 attest.

Actual Knowledge and Deliberate Indifference Standard: The AAUP recommends tipping the scales “with deference to the standpoint of the complainant” in violation of the due process guarantee of the presumption of innocence

The AAUP’s second main complaint against the regulations is that Title IX recipient schools will only be held responsible for sexual misconduct they actually know about (the “actual knowledge” standard) rather than conduct they should have known about (the “knew or should have known” standard). It further objects that such responsibility will only attach if recipient schools show “deliberate indifference” to known misconduct—that is, if their reaction is clearly unreasonable in light of the known circumstances—rather than a standard of “reasonableness,” recommended by AAUP. In explaining its objection, AAUP states:

Defining deliberate indifference in terms of “unreasonableness” creates a way out for administrators who, for various reasons, may want to avoid addressing charges of sexual harassment at their institutions. A properly defined standard of “reasonable- ness” – one with deference to the standpoint of the complainant – is far more consistent with the Department of Education’s role as an administrative agency enforcing Title IX in the public interest.

First, NAS reminds that the liability standards of actual knowledge and deliberate indifference are common thresholds for many areas of civil rights liability including the responsibility of schools in ensuring free speech rights under the First Amendment. Its existence in Title IX law is, therefore, unremarkable.

NAS further notes that the AAUP’s concern that school administrators may want to avoid addressing charges of sexual harassment seems unlikely considering that the documented sympathies of both university faculty and administrators generally favor complainants of sexual assault and not those accused. https://www.insidehighered.com/views/2018/11/08/college-administrators-are-more-liberal-other-groups-including-faculty-members

Finally, AAUP’s rationale for its recommended standard of “reasonableness” violates, on its face, impartiality and fair play by tipping the scales for a complainant: “[a standard] with deference to the standpoint of the complainant.”

It is precisely this type of imbalance that violates due process (as well as good faith) that the new regulations seek to fix.

Academics or Due Process Professionals? AAUP favors more involvement of academics in campus Title IX administration; NAS favors more involvement of those with relevant legal experience such as criminal defense attorneys or other due process professionals

Finally, AAUP advocates that faculty or academic administrators should be the preferred candidates to staff Title IX Offices on the grounds that individuals with this background have more familiarity with the workings of the university, including the customary practices of faculty governance:

The qualifications of any Title IX Coordinator should include knowledge of and experience working within a university setting. In the past, administrative preference for appointing non-faculty lawyers to serve in this capacity has often conflicted with customary practices of faculty governance. (AAUP May 15, 2020 Response at p. 2, par. d)

AAUP further elaborated on this point in its Title IX Comment of January 2019:

[I]n our view, faculty are appropriate candidates for the position of Title IX coordinator. Their knowledge of the workings of the university give them the insight to distinguish between “sufficiently serious” claims of discrimination and ones that do not merit further scrutiny under Title IX… This is a position that, rather than being confined to a single administrator, should be shared by several members of the university community with experience dealing with relationships among students, faculty and other employees. AAUP, Comment on DOE Proposed Rule, January 28, 2019 at p.5, par. B)

NAS takes strong exception to this position by AAUP and in fact, has advocated almost the opposite view.

NAS has found that Title IX offices are staffed almost exclusively by those with a background in university administration. Staff members with relevant legal experience are few and far between. (By relevant legal experience, NAS means a professional background where due process issues arise, such as in criminal defense work.)

In fact, even when a Title IX Office has a staff member with a J.D., that person typically has a background only in university administration or teaching, rather than practical, court room experience where due process protections - such as the disclosure of exonerating evidence or the requirement that adjudicators or jurors be impartial – are part of the regular work day.

For these reasons, NAS has recommended that more due process professionals be involved in campus Title IX administration, including, ideally, those with criminal defense experience. NAS has also clarified that such professionals should be external to the recipient school, to avoid the bias that might result from both institutional loyalties and political leanings.

When AAUP insists on the “need … for sensitivity to power differentials” (AAUP, Comment on DOE Proposed Rule, January 28, 2019 at p.5, par. B), it should realize that due process is precisely what has balanced the scales of power differentials for most of common law history. This is no less true in campus proceedings.

Conclusion

The AAUP recapitulates its reaction to the new regulations as follows:

Overall, 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 perpetrator 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 [some] protections are welcome, [they] are overshadowed by the overall regressive nature of the proposed regulations.

NAS finds these characterizations of the new regulations not only unwarranted but out of sync with the AAUP’s prior work on Title IX.

In truth, the regulations go a long way toward restoring balance in campus Title IX proceedings and especially in protecting the due process rights of a student accused of sexual misconduct. If anything, the third category of sexual harassment is overly broad in that it asserts, without a factual basis, that certain behaviors inherently deny educational access. But the regulations, “overall,” are reasonable and uncontroversial.

NAS would ask that the AAUP return to the principles of its former work on Title IX. That approach exhibited care and balance and a special regard for the university setting—in short, an approach fitting to an organization of university professors.


Teresa Manning is Title IX Director at the National Association of Scholars.

Image: Public Domain

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