The American Association of University Professors issued a draft report today entitled “The History, Uses and Abuses of Title IX.” The report criticizes the direction of Title IX enforcement since 2011, and the threat faculty sexual harassment regulations pose to academic freedom. The report argues that Title IX enforcement inadequately protects due process and threatens rights essential to teaching and research, extramural speech and faculty governance in the following ways:
- The failure to make meaningful distinctions between conduct and speech or otherwise distinguishing between hostile environment sexual harassment and sexual assault;
- The vague and broad definitions of hostile environment used to justify punitive sanctions against faculty engaging in protected speech;
- The trend of treating academic discussions of sex and sexuality as contributing to a hostile environment;
- The use of the lower “preponderance of evidence” standard of review instead of a “clear and convincing” standard;
- The increasing corporatization of campus administrations and the influence this has had on implementation of Title IX policies; and
- The failure to address gender inequality within a broader assessment of its relationship to race, class, sexuality, disability and other aspects of social inequalities.
Many of the criticisms by AAUP are predictable. For example, it is not a surprise that the report takes aim at the standard of proof used in determining violations of harassment policies. AAUP has long been a proponent of the “clear and convincing” standard for use in faculty disciplinary matters. Because the preponderance of evidence standard is the standard used in civil sexual harassment cases, as well as the standard imposed by both Title IX and the Violence Against Women Reauthorization Act, criticizing its use in on-campus proceedings seems futile.
The AAUP’s attack of Title IX’s broad interpretation of conduct that is sexual harassment is also puzzling. Title IX prohibits all forms of gender discrimination. One form of gender discrimination is sexual harassment, including behavior of a sexual nature which creates a hostile or offensive educational environment. There are various forms of behavior that, when severe or pervasive, can create a hostile environment. It should come as no surprise then that Title IX harassment cases involve lots of different types of conduct. Sexual assault is obviously a far more severe form of harassment than sexually offensive speech. While sanctions should fit the level of infraction, it seems entirely appropriate that Title IX would prohibit all forms of hostile environment sexual harassment. If cases exist where overly punitive measures were taken against faculty for statements that should have been protected speech, this is a deficiency with these institutions’ policies and procedures, not Title IX as a whole.
Although just issued today, the AAUP’s report is already receiving significant media attention. The report’s drafting committee is gathering comments on this draft and will be issuing a final version later this spring.