EspnW commemorates the 40th anniversary of Title IX by unveiling the world's largest photo mosaic of female athletes upon the Washington Newseum's 74-foot-high First Amendment tablet in June 2012. Credit: Paul Morigi/Invision for espnW/AP Images

A press release promoting the app “I’ve Been Violated” arrived in my inbox last week, just as I was about to dig into The History, Uses, and Abuses of Title IX, a new report by the American Association of University Professors. 

The app allows a victim of sexual assault to make an immediate post-event cell phone record, which is then encrypted and stored out of reach, for later retrieval by law enforcement or other authorities. 

This may or may not be a good idea—use it too often and the app will report you to the authorities. 

But it’s a sign of the times, and a reminder of something the AAUP authors are wary of. The report details what the group sees as the follies of current sexual discrimination investigations on campus. And in pointing out problems with Title IX interpretations, they’re swimming against the zeitgeist.

Written by a five-member committee, The History, Uses and Abuses of Title IX traces the evolution of the legislation (signed into law by Richard Nixon in 1972) from its origins as a tool to fight sex discrimination in academic hiring, through its revolutionary impact on school and college athletics, to its current high profile use in addressing complaints of sexual assault and harassment.  

It’s that current use that has gotten out of hand, AAUP says, mostly due to a morphing definition of “sexual harassment” that equates talk and action.

The professors have their own complaint about violation, and it goes like this: in too many cases, Title IX investigations are trampling due process and free speech rights.

“From trigger warnings to tweets. . .” the report says, “When Title IX concerns play out as hostile environment sex panics within the corporate university, academic freedom is threatened.” 

Harassment was not even mentioned in the Title IX legislation, AAUP notes. But by the 1980s, courts and the federal government had expanded the concept of discrimination in the workplace to include sexual harassment—which was then defined as quid pro quo demands for sexual favors and/or “verbal or physical conduct of a sexual nature” that creates a “work environment” so hostile or offensive that it interferes with the affected person’s ability to function.

By the late 1990s, sexual harassment in the form of a hostile environment had become an accepted discrimination claim under Title IX—though the report notes that administrators and courts “continued to find it hard to assess.” 
Now, says AAUP, “sexual harassment consists not only of sexual misconduct, but also of speech taken to create a ‘hostile environment’ “—a “conflation” that, as currently applied, runs roughshod over the protections afforded academic freedom and free speech.   

“We do not argue that speech can never create a hostile environment, nor that all speech is protected,” the report says. “We do argue that questions of free speech and academic freedom have been ignored in recent positions taken by the Office of Civil Rights of the Department of Education [DOE], which is charged with implementing the law, and by university administrators.”

And, says AAUP, here’s another problem: there’s been a shift “of enormous significance” in the standard for judging whether a Title IX violation has occurred. In 2011, the Office of Civil Rights changed that standard from requiring “clear and convincing” evidence of a violation, to a much less stringent “preponderance of evidence.” 

Lieberwitz, who’s also a Cornell University law professor, says that was a lowering of the bar. The “clear and convincing” standard requires evidence that shows a violation to be “highly probable,” she says, while the “preponderance” standard is met if anything over half the evidence supports a claim.

But critics of the report, including Northwestern University graduate student Kathryn Pogin, have been quick to point out that “preponderance of evidence” is the standard applied in other kinds of civil rights (and civil law) cases, and to argue that it was already in use by most colleges and universities before 2011.  

“Some people may think we’re not paying enough attention to the serious problems of sexual assault and sexual harassment on campus,” AAUP general counsel Risa Lieberwitz told me, when I asked about response to the report so far. “But we can address those and, at the same time, protect academic free speech, due process, and faculty governance.”

According to the report, the DOE’s power to withhold federal funds from Title IX violators is what strikes fear in the hearts of college administrators, most of whom now operate in a risk-averse, corporate university environment, “in which student satisfaction as ‘education consumers’ is paramount.” The result, they says, has been overly aggressive enforcement of policies often developed without faculty input, and an emphasis on prevention that can have a chilling effect on teaching and research.

But Southern Connecticut State University philosophy professor Heidi Lockwood disagrees. In an e-mail, she says she doesn’t see how “the increased focus on the rights of students to a safe and equitable education. . . is problematic, even by the AAUP’s own standards.” Lockwood cites AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure: “In that statement, which has stood the test of time, the AAUP itself acknowledges that faculty should exercise restraint on their own speech, as representatives of an institution.”

“In all of the cases described in the AAUP Title IX [report], the faculty in question arguably have failed to heed the AAUP’s advice to exercise commonsense restraint,” Lockwood says.   

Two recent Northwestern University cases show up among those AAUP examples of what they see as overreaching. NU professor Laura Kipnis was the target of a Title IX complaint and investigation in 2015, after she published “Sexual Paranoia Strikes Academe,” a provocative romp of a piece in the Chronicle of Higher Education. (She was exonerated, and followed up with another Chronicle article, “My Title IX Inquisition.“)

In the second case, “Head Nurses,” a first-person account of a therapeutic blow job bestowed by a nurse on a paralyzed patient, was censored from Atrium, an online journal published by Northwestern’s Feinberg School of Medicine. Northwestern eventually relented, but last year guest editor Alice Dreger resigned her faculty position in protest. AAUP interprets the incident as an example of the chilling effect of a Title IX-induced administrative “climate of fear” regarding “any discussions of sex.”        

AAUP—always a champion of “shared governance”—wants faculty input on Title IX policies and procedures, and peer review of complaints against faculty members. The report also proposes a broader, more systemic approach to problems of sexual discrimination, including support for more teaching and research on all kinds of inequality.

“AAUP’s position has always been and continues to be that we can and should address problems of sex discrimination, including sexual harassment and sexual assault on campus,” Lieberwitz says. But, she adds, “We need to step back and look at the broader context and ask are we applying Title IX in a way that’s moving us forward in addressing gender inequality.”

Perhaps there’s a middle ground. Northwestern University sociology professor (and director of Northwestern’s Center for Legal Studies) Laura Beth Nielsen says the AAUP’s concerns “are really important to think about, and to get right. We don’t want to impinge on academic freedom.” But she goes on:

The problem with the report is that it overplays these distressing and yet relatively rare kinds of problems at the expense of the problem that we know happens all the time—which is that women are sexually assaulted on campus, and under five percent of those sexual assaults are reported. We should not be so worried about tenured professors having to go through a bureaucratic process that we forget about where this is all coming from. 

The 56-page report, which closes with recommendations for DOE, administrators, and faculty, is a draft. Comment from AAUP members and the public is invited.