Last month, Tennessee struck an important victory for the rights of students at two public universities in the state. Senate Bill 1748 repealed rules that encroached on student due process rights at the University of Tennessee at Knoxville and Austin Peay State University.
Tennessee’s state universities, like other state agencies in Tennessee, publish their rules and regulations in the Tennessee Administrative Code. While this arrangement is somewhat rare for public universities elsewhere in America, it allows Tennessee’s legislature and governor to enact bills that repeal specific rules promulgated by public universities. Here, SB 1748 repeals the preamble to the Student Code of Conduct at UT Knoxville and a sexual misconduct policy at Austin Peay, both of which threatened student rights.
Institutions declare proceedings to be “educational” — when they are quite clearly adversarial.
At UT Knoxville, the preamble to the student code of conduct introduces the core values the university seeks to uphold and basic expectations of students. Most of its language was innocuous enough, but one provision was particularly concerning. It declares that the “student conduct process resolves allegations of misconduct and is an educational process designed to promote learning and development.”
That’s a refrain we hear from university administrators all of the time. It’s often used as an excuse to deny students basic procedural rights when defending themselves against serious charges. Institutions declare proceedings to be “educational” — when they are quite clearly adversarial, as institutions are seeking to enact punitive measures against a student — to deny students the right to have attorneys present and advocate on their behalf. If you try defending yourself in front of the university’s administrators and lawyers, and wind up expelled, at least you learned something in the process. How educational!
The other policy repealed by SB 1748, this one at Austin Peay, fell under the university’s Title IX compliance policies. The rule read:
When a person reports sex discrimination committed against a person while in the United States, APSU will follow its rules, procedures and processes used for Title VII sex discrimination allegations, which provide for the prompt and equitable resolution of complaints alleging sex discrimination.
This rule bizarrely conflated two different federal anti-discrmination statutes. Title IX prohibits discrimination based on sex at educational institutions receiving federal funds, while Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Austin Peay’s decision to follow workplace anti-discrimination law — instead of the education-specific Title IX rules required by the current federal regulations — was nonsensical. There are principled legal reasons why, despite the many similarities in the two statutes, the law treats students differently than employees. Employees, after all, are employed to accomplish their employer’s mission, while students are enrolled not to serve university administrators, but rather to gain an education. Courts, including the Supreme Court of the United States, have intentionally made this distinction for decades.
By repealing this policy, we hope that all of Austin Peay’s student sexual harassment policies will fall in line with the due process protections mandated by the current Title IX rules.
The Austin Peay policy is likely an example of “dual tracking” sexual harassment claims, a distressingly common practice at many institutions of higher education. Put simply, “dual tracking” is when universities adopt policies to comply with the Department of Education’s Title IX rules — which provide students with necessary due process protections and use the student-on-student harassment definition set forth by the U.S. Supreme Court — while also maintaining broader sexual harassment definitions and different investigation and adjudication processes that lack meaningful procedural protections. The result allows students to be brought up on Title IX and “non-Title IX” sexual harassment charges, creating a system ripe for abuse with reduced procedural protections and broader definitions of potential infractions. By repealing this policy, we hope that all of Austin Peay’s student sexual harassment policies will fall in line with the due process protections mandated by the current Title IX rules.
FIRE thanks Senator Kerry Roberts for introducing SB 1748 in the Senate and Representative John Ragan for introducing its counterpart, HB 1827, in the House. We’d also like to thank Governor Bill Lee for signing this bill and eliminating threats to student due process at two of Tennessee’s public colleges and universities.