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Recent interpretations of Title IX by the Office of Civil Rights that broadly define sexual harassment have created a “chilling” effect at America’s colleges and universities, threatening academic freedom, due process, and free speech, argues a recent report released by the American Association of University Professors.
The report characterizes OCR as conflating conduct and speech cases, creating a “seemingly limitless definition of harassment” without explicitly reaffirming the protected speech of classroom instructors, leaving faculty who teach and research sensitive topics related to gender, sex, sexuality, and rape law vulnerable to sexual harassment charges.
The report points specifically to the 2011 “Dear Colleague” letter, a guiding document released by the U.S. Department of Education, which defines sexual harassment simply as “unwelcome conduct of a sexual nature,” including sexual violence, “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
“I have heard from a number of colleagues, not just in criminal law but in other subjects, that they are now unwilling to teach any cases having to do with sex or sexuality, that they’re scrubbing their syllabi of material that touches on those topics, because those topics are the areas in which [they] could be perceived as engaging in unwanted verbal conduct of a sexual nature,” said Harvard Law School professor Jeannie C. Suk, whose writings on the challenges of teaching rape law are quoted in the report. “As long as the standard that is being used looks at whether the act is regarded as undesirable or offensive, then of course anything that one teaches having to do with sex or sexuality can be regarded as undesirable or offensive.”
The AAUP is a national organization of professors and academics focused on advancing free speech and shared governance. It has chapters on 450 campuses, though none at Harvard.
The report also argues that the increasing corporatization of universities, now driven by “consumer-based approaches” and fearful of OCR investigation that could threaten their federal funding, has led to administrative overreach and punitive action against faculty for their work in the classroom.
Samantha K. Harris, director of policy research at the Foundation for Individual Rights in Education, said schools are afraid that potentially offensive presentations on gender and sexuality in the classroom could lead to expensive external investigation.
“If OCR would issue guidance clarifying that protected classroom speech and protected speech in general does not run afoul of Title IX and will not be the basis of Title IX findings, that fear would be lessened,” Harris said.
The AAUP report similarly suggests that OCR reiterate its interpretation of Title IX as protecting academic freedom, freedom of speech, and due process for both complainants and the accused.
TITLE IX AT THE LAW SCHOOL
The concerns raised in the report have already been the matter of extensive debate on Harvard’s own campus. In 2014, 28 professors at the Law School called for Harvard to withdraw a new set of Title IX policies that, among other changes, used the “unwelcome conduct of a sexual nature” standard to define sexual harassment and instituted a new “preponderance of evidence” standard to determine guilt in disciplinary proceedings. The professors argued that the University’s new policies “inappropriately expanded the scope of forbidden conduct” and “violate[d] its own finest traditions of academic freedom and faculty governance.”
Many Law School faculty members took issue with the “unwelcome conduct of a sexual nature” standard, arguing, like the AAUP report, that the definition could endanger academic inquiry on topics of human sexuality, including rape law. The school’s faculty later voted to adopt its own set of procedures around investigation of sexual harassment allegations.
In a “Frequently Asked Questions” document released last fall, Harvard’s Title IX Office clarified that when determining whether offensive speech creates a hostile environment, it “assesses the effect of the speech on the environment from the perspective of an objective, reasonable person, bearing in mind that the University encourages free and uninhibited speech and inquiry.”
For Suk, the Law professor, the clarification came as a “huge relief.”
“I hope that the faculty will shift after this initial phase away from thinking of themselves as potential targets of sexual harassment accusations, to people who can really help change the campus culture for the better,” Suk said.
‘A NON SEQUITUR’
Not everyone agrees entirely with the report’s findings. Peter F. Lake ’81, a professor at Stetson University College of Law who studies higher education law, said it was conceivable that the guidance coming from OCR, though confusing to work with, had no issues and that schools were simply misapplying it.
“Will people do things with their Title IX systems that aren’t really ideal?” Lake said. “Yes, they will, that’s true with any court or grievance system… but it’s a non sequitur to draw the conclusion that because people may struggle to follow guidance that the guidance is axiomatically defective because of that—it might be, but it might not.”
Brett A. Sokolow, president and CEO of The NCHERM Group, a risk management consulting and law firm that works with universities on Title IX compliance argued that the cases in the AAUP report were entirely the result of errors of interpretation on the part of universities. He said that, even though the report may have correctly identified concerns with academic freedom and due process, it gave an incorrect and misleading diagnosis.
“Left and right, colleges and universities are misapplying due process standards, misapplying first amendment protections,” Sokolow said. “And so that to me speaks to a need to training, and a need for clearer standards from OCR, and for better guidance.” In particular, Sokolow called for tighter and more uniform policies around sexual harassment, nationwide.
Sokolow added that more faculty governance, which the AAUP report calls for, was not necessarily the solution, noting that he was concerned that a too-powerful faculty could stand in the way of Title IX compliance or become invulnerable to sanctions for its own sexual misconduct.
Scott D. Schneider, a professor at Tulane University who leads the Higher Education Practice Group at the law firm Fisher & Phillips, said the AAUP report’s findings could be a sign that intervention by the Department of Education in higher education has gone from one extreme—from deference to decisions made by universities before the 1970s—to another.
“You sort of wonder, has the pendulum swung the other way?”
—Staff writer Luca F. Schroeder can be reached at firstname.lastname@example.org. Follow him on Twitter @lucaschroeder.
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