The Conundrums of Intersectionality: AAUP Draft Report on "The History, Uses, and Abuses of Title IX"

Today the American Association of University Professors (AAUP) released a draft Report: The History, Uses, and Abuses of Title IX.  They have asked for comments by April 15, 2016.

The Report provides an opportunity to examine the difficulty of balancing multiple laudable principles when, in the process of operationalization, they appear, if carelessly applied, to do damage to each other. The Report effectively considers the difficulties of harmonizing fairness where academic freedom, constitutional speech rights, due process, racial justice and gender equity meet. That harmonization is difficult enough--but when it is mixed with corporatization, bureaucratic cultures, political agendas, and a perverse mania for wrongheaded assessment and accountability measures, the resulting cocktail is toxic indeed. Quoting Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard Law Review Forum, 103, February 2015, pp. 103-117, p.117), the Report (p. 36) notes: "Increasingly, schools are being required to institutionalize prevention, to control the risk of harm, and to make regulatory action to protect the environment. Academic administrators are welcoming these incentives, which harmonize with their risk-averse, compliance-driven, and rights-indifferent worldviews and justify large expansions of the powers and size of the administration generally.” This is not unique to Title IX; I have noted its effects in other aspects of administrative cultures at Penn State (eg, The Riskless University and the Bureaucratization of Knowledge: From "Indiana Jones" to Central Planning).

The Report is a step in the right direction, to be sure. But the enterprise of great cultural shifts, in the context of the university and even as the cultural basis of societal norms changes around us, may well be beyond the instrumentalism of both state and academy, or it may produce unintended effects.

The AAUP press release with links to the report and contact information for submitting comments and the executive summary of the report follows.

Dear AAUP Member:

Today, the AAUP is releasing an important draft report, The History, Uses, and Abuses of Title IX. We strongly encourage you and your AAUP colleagues to read it and send us your comments.

The report was written by a joint subcommittee of Committee A on Academic Freedom and Tenure and the Committee on Women in the Academic Profession. In researching the subject, we found that there are significant problems with the interpretation and enforcement of Title IX by the Office of Civil Rights (OCR) of the Department of Education and by university administrators.

We found that overly broad definitions of “hostile environment” and regulations conflating sexual misconduct (including assault) with sexual harassment based on speech have resulted in violations of academic freedom through the punishment of protected speech by faculty in their teaching, research, and extramural speech.

We also found that due process and faculty governance are not adequately protected in Title IX enforcement. Universities, under pressure from the OCR, have adopted lowered standards of proof that conflict with due process protections of those accused of misconduct. And university administrators have increasingly acted precipitously in taking punitive measures without respect for faculty rights of academic freedom, due process, or shared governance processes.

While successful resolutions of Title IX lawsuits are often represented as unqualified victories for gender equality, we found that the current interpretation, implementation, and enforcement of Title IX has sometimes compromised the realization of meaningful educational goals that lead to sexually safe campuses. In the context of increasingly “corporatized” universities, administrators may take actions that avoid OCR investigations and private lawsuits but that do not significantly improve gender equity.

Finally, we found that the current interpretation, implementation, and enforcement of Title IX can actually exacerbate inequities on campus. Recent student activism protesting institutionalized racial biases highlights the need to ensure that Title IX enforcement initiatives do not perpetuate race-based biases in the criminal justice system, which disproportionately affect men who are racial minorities.

The draft report explores these issues and contains a detailed history of the enactment of the Title IX statute.

It concludes with AAUP-based policy recommendations about how best to address campus sexual assault and harassment while also protecting academic freedom, free speech, and due process.

Download a draft version of the report at http://www.aaup.org/title-ix-report. If you have comments, please send them to Anita Levy (titleix@aaup.org) by April 15.

We will review all comments received and issue a final version of the report later this spring.

Cordially,
Risa Lieberwitz
AAUP General Counsel
Member, Committee A on Academic Freedom and Tenure

__________

The History, Uses and Abuses of Title IX

Download: 

TitleIX-Report.pdf

The following summarizes a draft report released for comment by the AAUP. The drafting committee will review all comments received and issue a final version of the report and of this executive summary later this spring. Download the report (.pdf).

Executive Summary: The History, Uses, and Abuses of Title IX

This report, an evaluation of the history and current uses of Title IX, is a joint effort authored by a subcommittee comprised of members of the AAUP’s Committee on Academic Freedom and Tenure (“Committee A”) and the Committee on Women in the Profession (“Committee W”).  The report identifies tensions between current interpretations of Title IX and the academic freedom essential for campus life to thrive.  This report finds that questions of free speech and academic freedom have been ignored in recent positions taken by the Office of Civil Rights (OCR) of the Department of Education (DOE), which is charged with implementing Title IX, and by university administrators who are expected to oversee compliance measures.
The report concludes with recommendations—based on AAUP policy—for how best to address the problem of campus sexual assault and harassment while also protecting academic freedom, free speech, and due process.
While successful resolutions of Title IX suits are often represented as unqualified victories in name of gender equality, this report finds that the current interpretation, implementation, and enforcement of Title IX has compromised the realization of meaningful educational goals that lead to sexually safe campuses.  Since 2011, deployment of Title IX has also imperiled due process rights and shared governance.  This report thus emphasizes that compliance with the letter of the law is no guarantee of justice, gendered or otherwise.
Specifically, this report identifies the following areas as threats to the academic freedom essential to teaching and research, extramural speech, and robust faculty governance:

• 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.
• The failure to address gender inequality within a broader assessment of its relationship to race, class, sexuality, disability, and other dimensions of social inequalities. 

The contemporary interpretation, implementation, and enforcement of Title IX threatens academic freedom and shared governance in ways that frustrate the statute’s stated goals.  This occurs in part because the current interpretative scope of Title IX has narrowed to focus primarily on sexual harassment and assault on campus.  This narrow fixation strays far afield from the original intent of the legislation and belies the full range of educational opportunities for women originally envisioned by Congress as protected by Title IX legislation, including access to higher education, athletics, career training and education, education for pregnant and parenting students, employment, the learning environment, math and science education, standardized testing and technology.
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.
These problems of interpretation and implementation demand close attention to the scope of actionable Title IX claims and as well as concentrated efforts to ensure that the procedural rights of the accused are respected.  Sexual harassment’s definitional imprecision has been accompanied by an OCR-mandated change in evidentiary standard that conflicts with due process protections of faculty and students.  The OCR has prohibited the use of the standard calling for “clear and convincing” evidence (highly probable or reasonably certain), and replaced it with a lower standard: that there need be no more than a “preponderance of evidence” (more likely than not) to assess sexual violence claims and by extension, all sexual harassment claims.
The effects of such practices are compounded by the increasingly bureaucratic and service-oriented structure of the entrepreneurial (or “corporate”) university, characterized by a client-service relationship between universities and their students.  This client-service model can run counter to universities’ educational mission when, as in the case of Title IX, universities may take actions that avoid OCR investigations and private lawsuits but that do not significantly improve gender equity.  This client-service model in turn has serious implications for academic freedom, as universities create administrative offices that make and enforce Title IX policies outside of the shared governance process.
Finally, this report reveals that the current interpretation, implementation, and enforcement of Title IX can actually exacerbate gender and other inequities on campus.  Recent student activism protesting institutionalized racial biases in universities reveals the need to ensure that Title IX enforcement initiatives do not, even unwittingly, perpetuate race-based biases in the criminal justice system, which disproportionately affect men who are racial minorities.  The report also cautions against the extraction of gender equity from more comprehensive assessments of bases of inequality—including race, class, sexuality, disability, and other dimensions of social difference—both on and off campus.

Recommended Best Practices

The report recommends the following:
For the Office of Civil Rights (OCR) and the Department of Education

• The OCR should interpret Title IX as protecting students from sex discrimination, while also protecting academic freedom and free speech in public and private educational institutions.
• The OCR should increase its attention to protecting due process in all stages of Title IX investigations and proceedings.
• The OCR should refine its compliance process to develop the potential to work with universities to create policies and procedures for receiving and addressing Title IX complaints in ways that address problems of sexual discrimination while also protecting academic freedom and free speech and providing due process for all parties.

For University Administrators

• Universities must strengthen policies to protect academic freedom against incursions from overly broad harassment policies and other regulatory university protocols.
• University policies against sexual harassment should distinguish speech that fits the definition of hostile environment from speech that individuals may find hurtful or offensive but is protected by academic freedom.
• Through shared governance processes, faculty must be included in all stages of development, implementation and enforcement of sex harassment policy.
• Universities must clarify their relationship to the criminal justice system and work in coordination with it.
• Universities should consider adopting restorative justice practices for some forms of misconduct.
• To further secure the rights of the complainants and the accused, campus initiatives to secure sex equality must be conscious of potential bias on the basis of race, gender identity, class, and sexual orientation in sex discrimination claims and enforcement processes.
• To meaningfully address inequality, universities should encourage and improve the conditions of interdisciplinary learning on campus by funding gender, feminist, and sexuality studies, as well as allied disciplines.

For Faculty

• Faculty should participate in shared governance to develop university policies and practices that address problems of sex discrimination, while also protecting academic freedom, free speech, and due process.
• Faculty should act in solidarity with student attempts to alleviate campus inequalities.