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After Investigating Professor for “Sexist Comments,” Marywood University Links Title IX with University “Values”

By October 28, 2015

Professor Tom Jackson is a veteran professor at Marywood University, a small Catholic institution in Scranton, Pennsylvania. He’s taught students political science for 25 years. But Jackson currently finds himself embroiled in a campus disciplinary proceeding that illustrates how universities can employ Title IX’s legal requirements as cover for their own attempts to discipline speech—even at the cost of chilling classroom expression.

Jackson’s ordeal began in May, when he received notice from university administrators that two students had filed a complaint against him. (He did not receive specific notice as to what prompted the complaint until months later.) As summarized in a July 9 letter from Patricia E. Dunleavy, associate vice president for human resources and the university’s acting Title IX coordinator, Marywood administrators launched an investigation of Jackson because the students alleged that he had made “sexist comments” and was “disrespectful of students in class who might have different opinions than [Jackson] on social, cultural, or political issues.”  

Jackson believes that the complaints were prompted by a comment he made in class about former Secretary of State Hillary Clinton during a discussion of the role of reputation in politics. In a June 22 letter sent to his hearing panel, he explained the pedagogical context of the comment. In noting the distinction between politicians’ senses of morality in their public and private lives, Jackson surveys the public and private lives of figures like Augustine, Benjamin Franklin, John F. Kennedy, Richard Nixon, Gary Hart, and Bill Clinton. With regard to President Clinton, Jackson jokes that Secretary Clinton is perceived as “bitch Hillary” for her reaction to the Monica Lewinsky affair. Noting that his comment was not directed at any student, Jackson reported to his peers that he has incorporated this line of discussion into his classwork since 2003.

Dunleavy’s July 9 letter did not explicitly state that Jackson was found to have violated the university’s Anti-Discrimination and Complaint Procedures Policy after the investigation. Nevertheless, Dunleavy informed Jackson that he would be required to meet with a university dean to discuss “the appropriate balance between academic freedom and ensuring that classroom activities reflect the University’s core values, including respect and empowerment.” The letter vaguely warned that the dean would also “take measures to ensure that future students are provided with a positive classroom experience.”

Marywood policy “posits freedom of inquiry, open discussion and unrestricted exchange of ideas as essential to the pursuit of knowledge.” Indeed, the university’s Code of Conduct—applicable to students and faculty—classifies “[e]ngaging in or inciting others to engage in conduct which prevents or limits the free expression of the ideas of others” as a violation subject to discipline. How Marywood squares these plainly stated commitments with its actions against Jackson—actions taken following two students’ reactions to subjectively offensive classroom speech—is difficult to comprehend.

Unfortunately, it’s not surprising. FIRE has repeatedly reported on Marywood’s hostility to freedom of expression in the past. The abrupt termination of tenured professor Frederick Fagal, who earned the university administration’s ire for posting parody YouTube videos, prompted an ongoing breach-of-contract lawsuit. And last December, my colleague Sarah McLaughlin detailed how Marywood’s response to a Black Lives Matter protest on campus jettisoned its promises of students’ expressive rights in a rush to silence speech that some might find offensive. So Marywood’s willingness to investigate and take action against a faculty member based on two students’ subjective objections to his expression appears to be part of a larger pattern.

Jackson’s case warrants close scrutiny because of the university’s conflation of its specific legal responsibilities under federal anti-discrimination statutes like Title IX with its enforcement of what Dunleavy refers to as Marywood’s “mission and core values.” After receiving Dunleavy’s letter, Jackson appealed, pointing out that he had not been found guilty of violating the university’s Anti-Discrimination and Complaint Procedures Policy by the hearing panel that reviewed his case. Further, he pointed out that while the policy makes specific reference to the university’s duties under Title IX, the July 9 letter from Dunleavy “contains no findings about an academic freedom-core value violation.” Jackson wrote:

A discussion with the dean about the academic freedom-core value balance is beyond the authority of the Title IX Policy Statement. Core values are not a concern of Title IX. …  Title IX is strictly about secular law. The vindication of core values is not a Title IX / Title IX Coordinator matter. … Title IX is not “an expeditionary license” to go anywhere its implementers choose to go a la an arbitrary monarch or totalitarian dictatorship.

In response, President Sister Anne Munley rejected Jackson’s argument, concluding instead that Title IX and the university’s core values are inextricably linked:

In your appeal, you alleged that a procedural error occurred because no finding was indicated. Although that is true, the recommendations that were provided, and with which I concur, clearly indicate that your behavior in the classroom did violate our University core values, and those core values are an integral part of our Anti-Discrimination and Complaint Procedures Policy, a policy much broader than the legal requirements of Title IX.

[…]

You also alleged that the sanction of meeting with your dean, Dr. Zauhar, was disproportionate because the University core values are “not a concern of Title IX.” As indicated above, I disagree.

In other words, Munley positioned the university’s “values” as an amorphous backstop to the anti-discrimination policy and Title IX, granting the university the power to punish faculty and students for “violations” that are beyond the scope of Title IX.

There are two problems with doing so. First, Munley’s expansive interpretation is in obvious tension with the university’s promises of free expression. How can professors ascertain the boundary between objectionable and unobjectionable speech when such a boundary is determined by the subjective sensibilities of each listener? They cannot—and, as a result, professors will rationally conclude that self-censorship is the best course of action, lest they find themselves subjected to investigation and possible discipline for having crossed a line that only becomes visible after the fact.

Second, by processing Jackson’s case under the leadership of the school’s Title IX coordinator and under the auspices of the university’s Anti-Discrimination and Complaint Procedures Policy, but then finding him responsible for violating “a policy much broader than the legal requirements of Title IX,” Marywood has marshaled its Title IX policy and personnel to prosecute speech admittedly beyond Title IX’s legal reach. Whether Marywood went after Jackson out of the sort of hyper-vigilant, Title IX-inspired speech-policing seen recently at a growing list of other institutions, or simply found it convenient to invoke the university’s core values to target speech that otherwise didn’t rise to an actionable level under Title IX, the result is the same: a professor’s germane classroom expression has led to an investigation and a disciplinary response. (Munley’s letter concludes by informing Jackson that the university’s vice president for academic affairs will “review this incident in light of our Progressive Discipline Policy to see if further action is warranted…”)

In facing discipline, Jackson joins a growing list of professors targeted for pedagogy deemed discriminatory by administrators. Patti Adler, Jammie Price, Arthur Gilbert, Dawn Tawwater, and Teresa Buchanan have all experienced similar treatment. As universities increasingly cite their legal obligations under Title IX and other federal anti-discrimination statutes to justify policing faculty speech, it is important to remember that the Department of Education’s Office for Civil Rights (OCR)—the federal agency responsible for enforcing those statutes on campuses nationwide—has stated, as recently as last year, that “the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title IX.” Unfortunately, that crucially important point was buried on the 43rd page of a 46-page FAQ, making it all too easy to ignore. And as FIRE has pointed out, OCR’s other recent actions send exactly the opposite message. So given the prevalence of schools like Marywood ignoring their commitments to free expression and using the Title IX investigative process to justify doing so, OCR must issue a clear, unmistakable reminder about the limits of Title IX, subjective offense, and free expression.