Column: So UMW President’s Defense Against Federal Complaint Amounts to Retaliation?

November 10, 2015

By Samantha Harris at Fredericksburg.com

Imagine that someone publicly made damaging allegations against you that you believed to be false. Now imagine that when you tried to publicly defend yourself against those allegations, you found yourself accused of unlawful retaliation.

Sound unfair?

It certainly does, but that is exactly what is happening around the country in the name of preventing sex discrimination on campus.

Last fall, a controversy arose at the University of Mary Washington after several members of the UMW men’s rugby club were recorded singing a bawdy song at an off-campus party.

After members of the UMW student group Feminists United on Campus complained about the recording, UMW dissolved the rugby club in March 2015 and ordered its members to undergo sensitivity training. Following the incident and the rugby club’s punishment, Feminists United members found themselves the targets of online hostility, particularly on the anonymous messaging app Yik Yak.

In May 2015, a group of students filed a complaint against UMW with the Department of Education’s Office for Civil Rights (OCR), asking the agency to open a Title IX investigation into UMW’s handling of the Yik Yak posts. The complaint alleged that by failing to appropriately respond to the social media posts, UMW had failed to address a sexually hostile environment on campus. The students held a press conference announcing the investigation and detailing the allegations in their complaint.

Shortly thereafter, UMW President Rick Hurley issued a letter refuting the allegations, calling them “unsubstantiated” and “demonstrably false.” Hurley wrote that the university had repeatedly met with students to discuss their concerns and had “consulted with legal counsel on permissible actions we might take to limit Yik Yak’s impact on campus.”

Hurley’s letter also noted that UMW could not, as the students had requested, simply ban students from using Yik Yak. Specifically, Hurley wrote that “as a public university, UMW is obligated to comply with all federal laws—not just Title IX. The First Amendment prohibits prior restraints on speech, and banning Yik Yak is tantamount to a content-based prohibition on speech.”

Of course, Hurley is right: UMW is both legally and morally bound to uphold the First Amendment rights of its students, and, as OCR itself has made clear, Title IX cannot trump the First Amendment. But in response, the students amended their OCR complaint to add the allegation that President Hurley’s “disparaging” letter constituted retaliation prohibited by Title IX.

Troublingly, OCR announced last month that it would, indeed, be opening an investigation not only into UMW’s handling of the Yik Yak posts but also the alleged retaliation.

Sadly, Hurley isn’t alone. Something very similar happened to Northwestern University Professor Laura Kipnis earlier this year. Kipnis found herself on the receiving end of a university Title IX investigation after she penned an essay for The Chronicle of Higher Education about what she called the “sexual panic” of the “post-Title IX landscape.”

Kipnis’ essay mentioned—using only information from the public record—a then-ongoing case at Northwestern involving a professor accused of sexual harassment. This, according to the complaint filed against her with the university, constituted retaliation. What’s more, not only was Kipnis subjected to a university Title IX investigation, but a Title IX retaliation claim was even filed with the university against the faculty support person who accompanied Kipnis to that investigation, because he had expressed concerns about that process to the faculty senate.

Kipnis was eventually cleared of wrongdoing by the university—but only after her second, scathing essay, “My Title IX Inquisition,” gained widespread public attention.

According to OCR documents, actual retaliation involves intimidation, threats or coercion. Why, then, are individuals and institutions being accused of retaliation for simply mentioning public cases or, worse yet, for attempting to defend their reputations against publicized allegations of wrongdoing?

This misuse of retaliation claims has profound implications for freedom of speech. If simply speaking up in defense of oneself or others on matters pertaining to sex discrimination constitutes retaliation under Title IX, the law amounts to nothing less than a gag order on students, faculty and administrators.

Schools: University of Mary Washington