AAUP Slams Education Dept. and Colleges Over Title IX Enforcement

March 24, 2016

Both the U.S. Education Department and college administrators are fighting sexual harassment and assault on campuses in ways that trample faculty members’ rights to academic freedom, due process, and shared governance, the American Association of University Professors argues in a draft report released on Thursday.

Moreover, the report warns, colleges’ current focus on eliminating sexual harassment may be contributing to other campus inequities, and may actually be hindering broader efforts to fight sexual discrimination under the gender-equity law known as Title IX.

The report says "the singular focus on sexual harassment has overshadowed issues of unequal pay, access, and representation throughout the university system." It raises concern that Title IX enforcement could "perpetuate race-based biases in the criminal-justice system, which disproportionately affect men who are racial minorities."

“The singular focus on sexual harassment has overshadowed issues of unequal pay, access, and representation.”
The AAUP has weighed in on colleges’ sexual-harassment policies before, emphasizing the need to protect faculty members’ due-process rights in statements issued in 1994 and 2012, and in a 2014 report. Its new draft report, released for public comment, says it focused on colleges’ compliance with the Education Department’s guidance on gender equity because "the uses and abuses of Title IX warrant an examination of their own."

The AAUP is releasing the report at a time when the Education Department’s Title IX enforcement has come under intense criticism from all sides of the debate over gender equity on the campus.

Some leading Republican members of Congress have accused the agency’s Office for Civil Rights of placing demands on colleges beyond those required by the law, and at least a few colleges have quietly pushed back against the department’s efforts at Title IX enforcement.

Meanwhile, some Democratic members of Congress have joined campus activists in pressuring the federal government and colleges to do more to protect women on campuses from sexual assault and various forms of sexual harassment, including that perpetrated on anonymous social media. The Office for Civil Rights, known as OCR, has argued that it is aggressively enforcing Title IX without exceeding its powers.

Missing the Point

"The contemporary interpretation, implementation, and enforcement of Title IX threatens academic freedom and shared governance in ways that frustrate the statute’s stated goals," concludes the new AAUP report, written by a joint subcommittee of the association’s Committee on Academic Freedom and Tenure and its Committee on Women in the Profession.

In interpreting Title IX "to focus primarily on sexual harassment and assault on campus," the report says, the department has been distracted from its duties under that law to protect women from discrimination in other areas, such as access to academic programs and participation in collegiate athletics.

The report, which draws heavily on a Chronicle database that tracks OCR’s Title IX investigations and their outcomes, argues that the agency has gone astray by failing to draw important distinctions between types of conduct. It says a 2011 letter from the department to colleges offering guidance on how to respond to sexual violence conflated such criminal conduct with sexual harassment, including speech that creates a hostile environment.

In failing to include "any statements or warnings about the need to protect academic freedom and free speech in sexual-harassment cases," the report says, the 2011 letter has prompted colleges to treat as suspect speech that contains sexual references of any kind, including academic discussions of sex and sexuality.

The report says the department created "a seemingly limitless definition" of sexual harassment by broadening it to embrace any "unwelcome conduct," a definition that "overemphasizes a complainant’s subjective responses" to the conduct at the expense of objective considerations of whether a reasonable person would be offended by it.

Offers of Appeasement

The report cites several cases in which, it argues, the department’s guidance has prompted colleges to trample faculty members’ academic freedom and due-process rights.

They include the University of Colorado at Boulder’s 2013 investigation of Patricia A. Adler, a tenured sociology professor, over a classroom skit on prostitution; Northwestern University’s investigation last year of Laura Kipnis, a professor of film whom students accused of violating Title IX by writing a Chronicle essay denouncing "sexual paranoia" on her campus; and last year’s dismissal by Louisiana State University at Baton Rouge of Teresa K. Buchanan, a tenured associate professor of curriculum and instruction whom students had accused of subjecting them to obscene language and sexually explicit jokes.

“Matters of speech are difficult to negotiate and always require attention to First Amendment guarantees and to academic freedom.”
"We do not argue that speech can never create a hostile environment, nor that all speech is protected, only that matters of speech are difficult to negotiate and always require attention to First Amendment guarantees and to academic freedom," the AAUP report says. The report says the association’s analysis of OCR’s letters of findings to investigated colleges found no warnings about the need to protect academic freedom and were almost devoid of any concern about due process for the accused.

The report also criticizes colleges over their responses to Title IX complaints, arguing that their "increasingly bureaucratic and service-oriented structure" has led them to trample faculty rights to appease aggrieved students and avoid OCR investigations and private lawsuits. It says college administrators usually bypass shared governance and neglect to seek faculty input in devising policies to comply with Title IX.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.