Kipnis Case Highlights Perilous Clash of Title IX and Academic Freedom

June 03, 2015

Students deserve to be educated in an environment free from sexual harassment, and professors, to speak and write freely about sensitive topics. But what happens when federal laws designed to protect those rights "butt heads," as some say occurred during the fallout over a Northwestern University professor’s essays on what she termed "sexual paranoia" on college campuses?

Universities nationwide are grappling with those issues as the number of campuses being investigated by the federal government for potential violations of the federal gender-equity law known as Title IX has climbed to more than 100.

When a complaint is filed, a university is required to investigate. In Northwestern’s case, two students filed complaints against Laura Kipnis, a professor in the department of radio, television, and film, claiming she’d violated federal law with her February essay in The Chronicle Review and with a subsequent tweet. Last week, hours after she published a second Review essay on what she termed her "Title IX inquisition," the university cleared her of wrongdoing.

The students said her original essay had misrepresented and impugned a student who had accused a professor of sexual misconduct and that the piece had had a "chilling effect" on students’ ability to report similar complaints.

The case points to the need for better guidance from the U.S. Department of Education on how colleges and universities should handle controversial statements by professors in news and social media, said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

"It’s very obvious that the First Amendment is butting heads with Title IX enforcement," he said. "This could be incredibly chilling for people who teach or write op-ed pieces about related issues."

‘Gender Apparatchiks’

Some higher-education experts questioned whether Northwestern should have dropped the case before it got to the point of Ms. Kipnis’s being interrogated by lawyers. But Mr. Lake said the university’s response wasn’t surprising "when you have a gun to the back of your head," alluding to the threat that colleges can be stripped of federal financing if they are found to violate the law.

"Somebody has to get in the middle of this and help referee it in a way that addresses due-process, First Amendment, and academic-freedom concerns," he said.

Erin E. Buzuvis, a professor at the Western New England University School of Law who directs its Center for Gender and Sexuality Studies, said that Northwestern had a responsibility to investigate the students’ complaints but that the process it used "could have been more evenhanded, expedited, and transparent without running the risk of violating Title IX."

A spokesman for Northwestern wrote in an email on Tuesday that the university is "firmly committed to free speech and academic freedom" as well as a harassment-free environment, and that it was confident the case had been handled appropriately.

Still, some scholars argued that universities are trampling over academic freedom in their eagerness to avoid harassment charges.

"University and college officials are fearful of running afoul of Title IX, so they are now quietly amending the U.S. Constitution," Christina Hoff Sommers, a resident scholar at the American Enterprise Institute and the author of Who Stole Feminism?, wrote in an email.

"The First Amendment is being replaced by a woman’s right not to be made uncomfortable," she added. Due process, she said, is treated as a barrier to justice while "armies of gender apparatchiks are monitoring and policing speech, ideas, humor, and sexuality."

Validating Faculty Fears

The potential chilling effect of Title IX that Ms. Kipnis outlined in her essays is troubling, said Brett A. Sokolow, president of the Ncherm Group, a consulting and law firm that advises colleges and that was formerly known as the National Center for Higher Education Risk Management.

"The way campuses like Northwestern respond to complaints like hers just validates the faculty fears to which Kipnis gives voice," he wrote in an email.

Ms. Kipnis’s two essays also touched on the topic of trigger warnings, which she wrote assumes students are "trauma cases waiting to happen."

That argument resonates with Mary P. Koss, a professor of public health at the University of Arizona who teaches about human sexuality and sexual violence.

"Trigger warnings are difficult in an intellectual environment because emotional learning is an important part of learning," she said. "Students in my human-sexuality class sign a consent form in which I say that the course content involves explicit imagery and materials that provoke emotions. If it offends you, let’s talk about it."

A male student once told her that her feminism created a hostile climate for him.

"I was happy he told me rather than going off and filing a complaint against me," Ms. Koss said. "It made me more sensitive to the fact that some men can be offended when there’s so much talk about men as rapists, and it made me take a closer look at my behavior and my sense of humor in class. I benefit from what students are thinking. I didn’t see it as self-censorship."

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.