Update:  In September 2017, the Department of Education (DOE) Office for Civil Rights (OCR) took initial steps to reform its position on Title IX enforcement. The department withdrew its 2011 Dear Colleague Letter on Sexual Violence as well as the 2014 Questions and Answers on Title IX Sexual Violence. It then released a new interim Q&A on Campus Sexual Misconduct for schools on how to investigate and adjudicate allegations under federal law, and subsequently issued amended regulations for implementing Title IX as they relate to sexual harassment by employees. The department sought comments on the amended regulations, and the AAUP submitted comments in January 2019. You can read the comments or a summary of them here.  The AAUP’s comments are directed to the unique circumstance of faculty in higher education, and come as DOE proposes rules that would narrow a school’s obligation to respond to cases of sexual misconduct.

The following summarizes a report prepared by a joint subcommittee of the Association’s Committee A on Academic Freedom and Tenure and of the Committee on Women in the Academic Profession. The report was approved by both committees in May 2016 and adopted by the Association’s Council in June 2016.

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

This report, an evaluation of the history and current uses of Title IX, is the result of a joint effort by a subcommittee that included members of the AAUP’s Committee A on Academic Freedom and Tenure and the Committee on Women in the Academic Profession. The report identifies tensions between current interpretations of Title IX and the academic freedom essential for campus life to thrive. It finds that questions of free speech and academic freedom have been ignored in recent positions taken by the Office for Civil Rights (OCR) of the Department of Education, 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 the 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 to 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 members for protected speech in teaching, research, and extramural contexts.    
• 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 (the “preponderance of evidence” instead of the “clear and convincing” standard).
• The increasing corporatization of the university, which has framed and influenced the implementation of Title IX by colleges and universities.
• The failure to address gender inequality in relationship to race, class, sexuality, disability, and other dimensions of social inequality.   

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 focus is inconsistent with the original intent of the legislation, which Congress envisioned as protecting a range of educational opportunities for women, 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 members. 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 as well as concentrated efforts to ensure that the procedural rights of the accused are respected. The imprecision in definitions of sexual harassment has been accompanied by an OCR‐mandated change in evidentiary standard that conflicts with due-process protections of faculty members and students. The OCR has prohibited the use of the standard calling for “clear and convincing” (highly probable or reasonably certain) evidence and replaced it with a lower “preponderance of evidence” standard in assessment of 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, which is characterized by a client‐service relationship between institutions and their students. This client‐service model can run counter to the educational mission of institutions of higher education when, as in the case of Title IX, colleges and universities take actions to avoid OCR investigations and private lawsuits but do not significantly improve gender equity. This client‐service model, in turn, has serious implications for academic freedom, as colleges and 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 inequities on campus.  Recent student activism protesting institutionalized racial biases in colleges and 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 the bases for 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 OCR and the Department of Education

• The OCR should reiterate that Title IX protects 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 colleges and universities to create policies and procedures for receiving and handling 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 college and university administrators

• Colleges and universities must strengthen policies to protect academic freedom against threats posed by overly broad harassment policies and other regulatory protocols.
• College and 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 members must be included in all stages of the development, implementation, and enforcement of sexual-harassment policy. 
• College and university policies should not require all faculty members to serve as mandatory reporters under Title IX.
• Colleges and universities should clarify their relationship to the criminal justice system and work in coordination with it.
• Colleges and 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 must be conscious of potential bias in sex discrimination claims and enforcement processes.
• To meaningfully address inequality, colleges and 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 members

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