In the five years since the Education Department’s Office for Civil Rights (OCR) issued its “Dear Colleague” letter—a memo to colleges and universities demanding they enforce Title IX laws to better prevent sexual assault and harassment on campuses—we’ve seen much needed attention brought to these issues at schools across the country.
But we’ve also seen institutions trample academic freedom in their efforts to meet OCR demands.
That’s what the American Association of University Professors (AAUP) argues in a lengthy new report, “The History, Uses, and Abuses of Title IX” (PDF), calling for a clearer distinction between speech that constitutes sexual harassment because it creates a hostile environment and speech that is merely offensive or upsetting.
The report highlights several egregious cases where that distinction has been blurred in Title IX proceedings, prompting administrations to fire, threaten, censor, and grossly mistreat faculty members to protect the university’s public image.
The authors argue that prioritizing reputation is part of a larger trend wherein universities are increasingly operating like businesses rather than institutions of higher learning.
Title IX was codified into law in 1972 by President Richard Nixon to prohibit gender discrimination in education, establishing that the federal government would not fund educational programs and institutions that discriminated against women.
Prior to 2011, it was referenced most frequently in the context of gender equality in sports, though it also promised equal educational opportunities to women—including faculty—when it came to career training and protection from sexual harassment, though “sexual harassment” was not written in the legislation.
“History, Uses, and Abuses” argues that while Title IX has done a lot of good for women in education, the law has increasingly been used to threaten free speech and due process ever since the “Dear Colleague” letter.
The report notes that the line between misconduct and speech had long been blurred, the 2011 update to the law “conflates conduct and speech cases” because of its broad definition of sexual harassment as “ranging from most serious conduct of ‘sexual violence’ (including rape, sexual assault, sexual battery and sexual coercion) to speech-based hostile environment.”
The report also accuses the Education Department of mandating a new “preponderance of evidence” standard when assessing Title IX cases as opposed to a higher, “clear and convincing” standard used in criminal cases.
Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management and authority in Title IX proceedings, told The Daily Beast that the Education Department merely clarified the preponderance of evidence standard as the correct standard, which “more than 80 percent of colleges were using at that point.”
The AAUP’s charge that the Education Department lowered the standard is “fundamentally inaccurate,” he said.
The AAUP report coincides with what many professors and journalists believe is a culture of grievance among university students.
This has led to the rise of “trigger warnings” and “safe spaces” to protect students from “microaggressions,” including violent or disturbing content in course syllabi—from the rape scene in Ovid’s Metamorphoses to Alison Bechdel’s Fun Home, her much-praised autobiographical graphic novel depicting her father’s suicide and HER lesbian sexual awakening, which has since gone on to become a massive Tony Award-winning theatrical hit.
While there are no federal regulations mandating trigger warnings, the report illustrates how student complaints to administrators over offensive or triggering course content has perpetuated concerns about sexual harassment as defined by Title IX laws.
In 2014, the South Carolina state legislature called for a budget cut for the The College Reads program at College of Charleston and the University of South Carolina-Upstate, because the program recommended Fun Home on voluntary reading lists for incoming freshman. (The report’s authors note the irony that the withdrawn money which effectively promoted censorship was reallocated to “support books teaching about the Constitution and other relating to ‘American ideals.’”)
Patricia Adler, a former sociology professor at the University of Colorado-Boulder, is another casualty of Title IX overreach.
Adler had been teaching a class called “Deviance in Society” about the global sex trade to 500 students every semester for 30 years when, in 2013, a graduate teacher’s assistant in the class complained to administrators that Adler’s unorthodox teaching methods bordered on sexual harassment.
Students had long been drawn to her class because they were given the opportunity (but not required) to participate in performances with her where they played a range of characters—from Eastern European slave whores to high-end escorts—relevant to the course material.
“I used prostitution to illustrate status stratification by talking about the six different strata of the slave trade,” Adler told The Daily Beast, noting that she had long used engaging techniques while teaching. Such techniques are not tolerated on campuses now, Adler said, because of a “tyranny of the vulnerable.”
Adler’s teacher’s assistant did not bring up the issue with Adler. Instead, she spoke to the Sociology department chair, who reported the complaint to UC-Boulder’s Office of Discrimination and Harassment.
“There’s a culture of fear in the university system so when an issue is reported, everyone kicks it upstairs because they don’t want it on their hands,” Adler said.
In December 2013, Title IX enforcement administrators at the school sat in on her class without notifying her and concluded that the skits were “offensive” because someone who played the role of a pimp used the word “faggot.”
They also determined that there was an inappropriate power imbalance between Adler as a teacher and the performing undergraduate teacher’s assistants that could constitute sexual harassment. (Graduate teachers’ assistants, including the one who filed the initial complaint, were not allowed to perform in the skits.)
Adler’s dean offered her a buyout for early retirement and warned that if she didn’t take it she would forfeit retirement benefits, among other penalties. When she pleaded with them to keep her job and drop the skits, they told her keeping her was too risky in a “post-Sandusky” climate.
“They conflated sex in the context of the class with power dynamic with students,” said Adler, who is now retired and lives in Hawaii. “People are afraid of teaching any topic that could be deemed controversial because they know the administration won’t stand behind them.”
Laura Kipnis, a feminist film professor at Northwestern University, was similarly targeted by the school’s Title IX officers after she published an essay in The Chronicle of Higher Education, “Sexual Paranoia Strikes Academe,” about widely reported accusations of sexual assault by two students against Peter Ludlow, a philosophy professor at Northwestern.
Student activists urged the administration to investigate Kipnis under Title IX, arguing that her essay was an act of retaliation against Ludlow’s accusers. She detailed the entire process in a subsequent essay, “My Title IX Inquisition,” arguing that her previous essay was not “retaliation” but simply “intellectual disagreement.”
Kipnis was ultimately exonerated, but said being targeted with Title IX complaints because she voiced controversial opinions indicates that students are in charge now more than ever on campuses.
“Student activists are obsessed lately with this issue of inequities in power—professors having more power than they do—but really the direction of power has shifted,” Kipnis said. “It’s partly because of the consumer satisfaction model universities now all adopt, but equally because professors are all terrified of getting caught up in some sort of national scandal for saying something ‘wrong’ in class.
“Students have power over professors’ jobs,” she continued. “I doubt they’d agree since powerlessness is a more attractive stance to adopt.”
The report also cites Teresa Buchanan, a former tenured associate professor of childhood education at Louisiana State University, who was fired in May 2014 for using “salty language” in class with students. (One of her alleged offenses was saying “fuck no” in the classroom.)
Risa Lieberwitz, a professor of law at Cornell University and chair of the subcommittee that wrote the report, said the AAUP takes sexual assault and harassment seriously, and recognized that not all speech is protected under Title IX laws, which state that a “speech-based hostile environment” can constitute sexual harassment.
“We are simply saying that in the university, we need to distinguish between unprotected speech and speech as protected by academic freedom,” Lieberwitz said, adding that this will never be accomplished as long as administrations are calling all the shots.
Lieberwitz also stressed that the “corporatization of universities” is central to understanding Title IX panic and overreach within universities.
The new trend of universities operating as businesses and taking a consumer-oriented, risk-averse approach to education makes administrators more afraid of public image concerns and OCR scrutiny. Within that system, academic freedom takes a backseat to the university’s public image.
This approach “doesn’t further education; it encourages an overbroad definition of sexual harassment and hostile environment,” said Lieberwitz. “It undervalues the importance of due process and excludes faculty governance from creating and applying good policies.”
Kipnis echoed those sentiments.
“There’s a follow-the-money incentive, since a lot of money is being put into Title IX offices, which gives them more and more power to change the culture on campus,” she said.
“There’s also an increasing sense of vulnerability among some students, who feel endangered and potentially victimized, which is being bolstered by professors releasing trigger warnings. So there’s a rise in all different kinds of things that can constitute injury.”
Looking to the future, the report urges the OCR to interpret Title IX as prohibiting gender discrimination “while also protecting academic freedom”; to put more emphasis on due process in Title IX investigations and proceedings; and to work with universities to establish more constructive ways of enforcing the law.
But the report places more responsibility on university administrators, calling on them to “strengthen policies to protect academic freedom”; to distinguish protected speech from unprotected speech; to include faculty in developing, implementing, and enforcing sexual harassment policies; and to work with the criminal justice system during those processes.
As much as educators like Kipnis and Adler demonstrate that an overly broad definition of “hostile environment” under the umbrella of sexual harassment intrudes on academic freedom, the AAUP appears more focused on those who have not yet been punished.
The examples set by cases such as Adler’s and Kipnis’s will surely result in increased self-censorship among university educators.
“There are many stories we won’t hear,” said Lieberwitz. “There’s a reason the term ‘chilling effect’ is so often used when we talk about free speech.”