According to a scathing new report from the American Association of University Professors (AAUP), the federal government is effectively forcing colleges and universities to make an unnecessary and potentially unconstitutional choice: Comply with our interpretation of Title IX to keep your federal funding, or uphold free speech, due process, and academic freedom on campus.
The AAUP report says the Department of Education’s Office for Civil Rights (OCR)—the federal agency tasked with enforcing Title IX—has begun enforcing the law to combat sexual offenses on campus, but has employed an overbroad interpretation of prohibited behavior that sweeps within its ambit constitutionally protected speech:
Critically, the current focus of Title IX on sexual violations has also been accompanied by regulation that conflates sexual misconduct (including sexual assault) with sexual harassment based on speech. This has resulted in violations of academic freedom through the punishment of protected speech by faculty in their teaching, research, and extra-mural speech. Recent interpretations of Title IX are characterized by an overly expansive definition of what amounts and kinds of speech create a “hostile environment” in violation of Title IX.
This, says the AAUP, combined with a lower standard of proof for finding guilt in some cases, chills speech and makes for a due process disaster once a student or faculty member is accused of a violation:
The OCR has prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and by extension, all sexual harassment claims.
FIRE warned repeatedly about the problems these rules could cause when they first came to our attention. Then, when worst-case scenarios started materializing, we reported on them here on The Torch, wrote to the institutions involved, and worked with the faculty and students affected. (See our coverage of the “Title IX inquisition” of Northwestern University professor Laura Kipnis for writing about these very issues, or the FIRE-sponsored Stand Up For Speech Litigation Project lawsuit against Louisiana State University by professor Teresa Buchanan, for example.)
The AAUP’s report notes various critical problems with recent Title IX enforcement that threaten academic freedom and due process on campus, including:
- The failure to make meaningful distinctions between conduct and speech or otherwise distinguish between hostile environment sexual harassment and sexual assault.
- The use of overly broad definitions of hostile environment to take punitive employment measures against faculty for protected speech in teaching, research, and extramural speech.
- The tendency to treat academic discussion of sex and sexuality as contributing to a hostile environment.
- The adoption of lower evidentiary standards in sexual harassment hearings, i.e. the “preponderance of evidence” instead of the “clear and convincing” standard.
- The increasing corporatization of the university, which has framed and influenced universities’ implementation of Title IX.
In this latest report, the AAUP provides suggestions for a path forward for OCR, campus administrators, and faculty. Most importantly, the AAUP calls on OCR not to ignore campus civil liberties in the name of effecting gender equality. As the AAUP notes, without these critical protections,Title IX’s current enforcement scheme provides no guarantee of “justice, gendered or otherwise.”