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AAUP Comments on Proposed Title IX Changes

On September 10, 2022, the American Association of University Professors submitted comments in response to a proposal by the US Department of Education (ED) to amend regulations implementing Title IX of the Education Amendments of 1972. The Department of Education’s proposed regulations make several positive changes in Title IX policies and procedures—including the regulations’ coverage of all forms of sex discrimination and the welcome clarification that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity. At the same time, the AAUP makes recommendations to amend provisions of the proposed Title IX regulations to better enact Title IX’s broad equity goals for higher education.

Whereas the Department of Education’s proposed regulations emphasize students, the AAUP’s comments relate to faculty and other academic professionals (including all teaching and research faculty, librarians, and graduate student employees), as well as staff, because Title IX affects them in multiple ways. Beyond protected categories like race and gender, the proposed changes must be responsive to how job categories and rank can also create vulnerabilities to sex discrimination. It is the AAUP’s position that the interpretation and implementation of Title IX must occur alongside careful and increased consideration of all forms of systemic discrimination and inequity in academia and that such consideration would be best accomplished through a robust commitment to shared governance and academic freedom.

The AAUP urges the Department of Education to adopt regulations that do the following:

  • Address gender inequity within a more comprehensive assessment of bases for inequality.
  • Protect freedom of speech and, in particular, academic freedom of faculty in their teaching and research.
  • Protect due process in investigations and hearings.
  • Endorse shared governance and collective bargaining to bring faculty expertise and institutional knowledge into developing and implementing policies related to Title IX.

To promote these goals, the AAUP’s specific recommendations include the following.

Addressing Gender Inequity within a Broader Systemic Context of Inequality

The AAUP encourages the Department of Education as well as colleges and universities to take note of the recommendations in the AAUP’s 2016 report, The History, Uses, and Abuses of Title IX, which is aimed at improving the working and learning conditions of all campus constituents. This includes fully committing to interdisciplinary learning on campus by adequately funding gender, feminist, and sexuality studies, as well as allied disciplines, as part of an effort to teach about all forms of inequality, including inequalities of race, disability, class, caste, gender identity, geographic location, and sexual orientation. Without this commitment, Title IX fails.

Protecting Academic Freedom

We recommend applying sex-based harassment policies in ways that distinguish between speech protected by academic freedom and conduct that consists of unwelcome actions or unprotected speech. We point out that faculty who teach in gender studies and other disciplines that address issues of systemic inequity are likely to be disproportionately affected by Title IX complaints. While such topics may be offensive or uncomfortable to some students, their content is serious and scholarly and rests on the expertise of the teacher, whose judgments on scholarly matters are protected by academic freedom.

We recommend that the Department of Education adopt a fuller statement of what is required to protect free speech, academic freedom, and due process, specifically adding the following language to the regulations: “In regulating the conduct of its students and its faculty to prevent or redress discrimination prohibited by Title IX, a recipient [educational institution], whether public or private, must formulate, interpret, and apply its rules so as to protect academic freedom, free speech, and due process.”

We recommend that the Department of Education prohibit college or university policies making it mandatory for all faculty to report any information of possible sex discrimination to the Title IX coordinator or other university official. Such overly broad policies have a negative impact on teaching and advising relationships by compelling faculty members to violate students’ and colleagues’ confidentiality. Instead, we recommend adopting the current University of Oregon reporting system as a model. Institutions of higher education should restrict mandatory reporting to “designated reporters,” with that group being defined in consultation with faculty governance processes, collective bargaining, and collaborative engagement with students and others invested in addressing campus inequities.

We recommend that the qualifications for a Title IX Coordinator include knowledge of and experience working in a university setting. The training received by such coordinators requires not just matters of risk and liability, but insight into how universities work, the nature of power relations in the university, how higher education curriculum is decided, and what counts as serious academic inquiry. Academic freedom requires knowledge of the principles and practices of the university as experienced by faculty members as well as other members of the community. The Title IX coordinator should not be simply agents of the administration, instead they should be responsible to a committee that includes at least one faculty member.

Protecting Due Process

We recommend that the Department of Education should reject the use of a “single-investigator model.” Instead, we recommend that the Title IX regulations should retain the existing prohibition of the decision-maker being the same person as the Title IX coordinator or investigator. Reliably accurate outcomes in Title IX grievance procedures are a requisite for the law’s objective of prohibiting sex discrimination in educational institutions. A single-investigator model reduces the reliability of grievance procedures by introducing greater opportunities for bias to manifest and for errors or omissions to go unnoticed. 

We recommend that colleges and universities should be required to provide robust levels of due process for all types sex discrimination cases, including sex-based harassment cases. Grievance procedures in institutions of higher education should include the use of live hearings and the “clear and convincing” evidence standard, which will enhance their fairness and reliability, particularly where faculty, staff, or students face potentially life-altering disciplinary sanctions such as suspension or dismissal. Providing strong due process protections in Title IX grievance procedures would also help guard against the risk that a determination is consciously or unconsciously based on presumptions derived from gender and racial stereotypes that affect evaluations of credibility or the likelihood of guilt.

We recommend that due process should also be required before any decision to impose disciplinary actions prior to a complaint being filed or pending a grievance procedure. The proposed Title IX regulations allow for disciplinary actions such as a suspension as part of “supportive measures that burden a respondent,” “emergency removal,” and “administrative leave.” Fair and reliable procedures are needed before deciding to impose such serious disciplinary measures.

Enhancing Shared Governance

We recommend that the Department of Education endorse the central role of shared governance and collective bargaining in the development and implementation by colleges and universities of policies in compliance with Title IX. Through shared governance bodies, such as faculty senates, and collective bargaining on unionized campuses, faculty can share their institutional knowledge and disciplinary expertise to ensure that policies and procedures are designed to prevent and remedy sexual harassment and other forms of sex discrimination, respect academic freedom, and provide due process to all parties. Several AAUP policies provide guidance for creating effective shared governance, including the Recommended Institutional Regulations on Academic Freedom and Tenure,  The Statement on Government of Colleges and Universities, and The Statement on Academic Government for Institutions Engaged in Collective Bargaining.  

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