Tenure Rights and the Rise of Title IX: a Looming Culture Clash

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Faculty-disciplinary proceedings, which often involve lengthy hearings on charges that can take months to resolve, are on a collision course with colleges’ efforts to quickly and forcefully deal with tenured professors accused of sexual harassment.

Exhibit A in the clash is the University of California at Berkeley. The university has already announced a number of changes in its programs and processes in the wake of a controversy over how it has handled several high-profile cases of harassment allegations. In the case of a famous astronomer, for example, Berkeley was criticized for a weak response when it warned him that if he harassed others he would be suspended rather than dismissed. In their explanation, administrators expressed frustration with the limits they face in disciplining faculty members.

Harassment Accusations at Berkeley

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The University of California at Berkeley has been under fire after several high-profile sexual-harassment cases.

• After String of Incidents, Berkeley Announces Changes to Fight Sexual Misconduct
• Berkeley Is Under Fire, Again, for How It Handled Sexual Harassment
• Geoff Marcy’s Downfall
• Why Colleges Have a Hard Time Handling Professors Who Harass
• How Astronomers Sought to Intervene With Geoff Marcy — and What’s at Stake for Women in the Field

Since 2011, a total of 19 Berkeley employees, including six faculty members, have been found in violation of the university’s sexual-misconduct policies, according to an article this week by The Mercury News, of San Jose, Calif. None of those who were fired as a result were tenured faculty members.

The University of California system is now exploring changes in its faculty-disciplinary procedures. A committee of professors, administrators, and students issued a report on Monday about how the Academic Senate’s disciplinary procedures might be revised to more efficiently handle sexual-misconduct complaints against professors. The committee’s findings are not yet public. But the system’s president — who appointed the panel in October after the resignation of Geoffrey W. Marcy, the astronomer who was found responsible for sexually harassing undergraduate women — is expected to make a statement about the committee’s recommendations this week.

In appointing the panel, the president, Janet Napolitano, wrote to the UC regents and chancellors to say that faculty-disciplinary procedures “may have inadvertently made the investigation and resolution” of the sexual-harassment charges against Mr. Marcy “more difficult.”

Faculty-disciplinary processes were not necessarily created to deal with infractions on which university administrators want to take quick, decisive action, says Peter F. Lake, an expert on the gender-equity law known as Title IX and director of the Center for Excellence in Higher Education Law and Policy at the Stetson University College of Law. “I don’t think many of these systems were designed to deal with sex harassment.”

Instead, he says, disciplinary proceedings were designed to take time. “They were meant to slow things down, to be methodical, and create significant enough procedural blocks that institutions would think twice about initiating disciplinary proceedings.” That was so that universities wouldn’t violate professors’ academic freedom, he says, by punishing them for saying unpopular things in the classroom.

Now, he says, with institutions using systems created to hear complaints of sexual misconduct under Title IX, traditional faculty procedures may be passed over. “We are headed into a major culture clash, particularly with academic staff,” he says. “If I’m at an institution that has promised me certain procedural protections, and Title IX comes along, and we don’t have to do disciplinary procedures anymore, that’s a conflict.”

A ‘Lengthy and Uncertain Process’

In the case of Mr. Marcy at Berkeley, the campus’s Office for the Prevention of Harassment and Discrimination — which handles accusations of sexual misconduct under Title IX — investigated charges against him last year and found him responsible.

After the university announced his punishment — a warning that he would face suspension if he was found responsible for harassment again — people inside higher education and out criticized Berkeley for going too easy on Mr. Marcy. Administrators, in response, expressed frustration with the limits they said they faced under the university’s current faculty-disciplinary procedures.

“It is important to understand that as Berkeley’s leadership considered disciplinary options, we did not have the authority, as per University of California policy, to unilaterally impose any disciplinary sanctions, including termination,” Nicholas B. Dirks, Berkeley’s chancellor, and Claude Steele, its provost, said last fall in a statement. “Discipline of a faculty member is a lengthy and uncertain process.” The process, they wrote, would include a full hearing by the faculty with standards of evidence for finding a professor responsible that are higher than the standard applied by the university’s Office for the Prevention of Harassment and Discrimination.

Other universities have struggled, as well, with how to best respond swiftly to the problematic behavior of tenured professors. The University of Miami bypassed its normal faculty-disciplinary procedures after a female graduate student complained, in 2012, about sexual harassment by one of its tenured philosophy professors, Colin McGinn. In that case, university officials took matters into their own hands and pressed him to resign.

If the charges had worked their way through the entire procedure, the university’s Faculty Senate would have had to hear the case and issue a recommendation. Because Mr. McGinn was not accused of having sex with the graduate student who accused him of harassment, administrators at Miami were concerned that the senate would find in his favor. Forcing Mr. McGinn out without the faculty’s approval could have caused an uproar and possibly a legal battle.

Mr. McGinn resigned in December 2013.

The trend at universities toward finding ways to adjudicate sexual-harassment complaints outside the normal faculty-disciplinary procedures troubles the American Association of University Professors. It issued a report last week warning that 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 charge that traditional faculty-disciplinary procedures are too cumbersome to use in weighing sexual-harassment complaints is just an excuse, says Anita Levy, a senior program officer in the AAUP’s office of academic freedom, tenure, and governance. “For faculty members accused of harassment whose jobs are put on the line, we would not want due process to be truncated,” she says. “Everybody should get a hearing, a fair process. A rush to judgment is not going to satisfy anyone.”

Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at robin.wilson@chronicle.com.