Last month, the American Association of University Professors (AAUP) released a draft report titled “The History, Uses and Abuses of Title IX” detailing tensions between the federal government’s interpretation of Title IX and the academic freedom and speech protections that faculty require. The group accused the Department of Education’s Office for Civil Rights (OCR) of overreach in its enforcement of the anti-sex-discrimination law, saying its actions effectively force universities to choose between following federal Title IX guidance and “protecting academic freedom, free speech, and due process.”
The AAUP wrote:
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.
Last week’s findings letter from the Department of Justice to the University of New Mexico would appear to only exacerbate the AAUP’s important concerns. By explicitly requiring schools to investigate all “unwelcome conduct of a sexual nature,” including “verbal conduct,” even if it is protected by the First Amendment or an institution’s own promises of free speech, the DOJ’s latest letter seems to amplify the “problems of interpretation and implementation” the AAUP’s draft report criticizes.
We reported the AAUP’s concerns here on The Torch when they were released, outlining what the report said at the time were the biggest threats from the federal government to 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.
DOJ’s letter to UNM prompts a fresh look at these concerns.
As my colleagues have explained in posts here this week, the UNM findings letter doubles down on a 2013 joint letter from the Departments of Education and Justice to the University of Montana, which first broadened the definition of sexual harassment under Title IX to include “any unwelcome conduct of a sexual nature” including “verbal conduct.” The Departments dubbed that letter a “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.”
The AAUP criticized the blueprint back in 2013, and again in this most recent report.
Earlier this week, New York University School of Law professor Richard Epstein offered his own searing analysis of the “unsound judicial and administrative procedures” that led us here—ones that have steepened the judicial slope down which, as he puts it, the “Title IX Juggernaut” continues to snowball.
Of particular concern to Epstein is the fact that “the entire OCR approach represents a complete, if tacit, revolution in our system of administrative procedure that was put into place under the 1946 Administrative Procedure Act.” FIRE has commented extensively on OCR’s “guidance” on Title IX being enforced with the weight of black-letter law.
Given these considerations, Epstein offers a grim forecast for schools like UNM:
There is little that any private or public university can do itself to stop the Title IX juggernaut, when even the federal government’s power to investigate imposes massive costs on private institutions, both in dollars and in reputation.
There is something that schools can do to push back, though: They can join us in bringing a challenge against these unlawful directives under the APA. We hope an institution takes us up on our offer.