Protected academic speech and due process rights are under attack from the Education Department and campus administrators, according to a new report from the American Association of University Professors.
In a report titled “The History, Uses and Abuses of Title IX,” the professors’ group argues that while the federal anti sex-discrimination statute has had some success in combatting campus sexual assault, it is creating more problems than it solves. AAUP states that the recent weaponization of Title IX stems mostly from the Education Department’s Office for Civil Rights’ 2011 “Dear Colleague” letter, which has been used to force universities to create pseudo-court systems to address sexual assault and sexual harassment.
AAUP notes the problems with the newest interpretation of Title IX. Those problems include “overly broad” definitions of what constitutes a “hostile environment.” Currently, speech is being subjected to similar restrictions as sexual assault, as words have now been equated to violence.
“The OCR’s 2011 Dear Colleague Letter (DCL) broadly defines sexual harassment under Title IX as ranging from the most serious conduct of ‘sexual violence’ (including rape, sexual assault, sexual battery, and sexual coercion) to speech-based hostile environment,” the report says.
This has “relegated” academic freedom and free speech protections “to the background or ignored completely,” AAUP wrote.
Besides the broadened definition, the group argues that Title IX enforcement “inadequately protects due process and academic governance.” In an earlier guidance document from OCR, the agency stated that due process protections should be afforded to accused students, but that those protections shouldn’t “restrict or unnecessarily delay the protections provided by Title IX to the complainant.”
The professors’ group says this opened the door for OCR to restrict due process (and we all know how that has turned out). The 2011 “Dear Colleague” letter further undermined due process, requiring schools to give up the previously acceptable “clear and convincing” standard of evidence for the lower “preponderance of evidence” standard. AAUP points out that even though this was a substantive change, the updated guidance did not go through the necessary notice-and-comment period.
“This clarification, which was in fact a substantive change, has produced significant and worrisome effects on the enforcement of Title IX,” the AAUP wrote.
Yet OCR shows no concern for due process. Time and time again, whenever a university is found in violation of Title IX (they almost universally are), OCR’s report contains “no warnings … about the need to protect academic freedom and almost no concerns expressed about due process for the accused,” AAUP wrote. Further, when a school is found in violation of Title IX and enters into an agreement with OCR about updating its policies, due process concerns aren’t mentioned.
AAUP also notes the race component in the lack of due process, as I and others have pointed out. Such enforcement without due process, which has been largely affecting minority students, might “perpetuate race-based biases in the criminal-justice system, which disproportionately affect men who are racial minorities.”
AAUP echoes concerns from many others (including me) that OCR is threatening colleges and universities into complying with the ever-changing interpretation of Title IX. Until Title IX is reformed, inequalities among students won’t be solved.
I encourage you to read the entire report, because the AAUP had a lot more to say.
Ashe Schow is a commentary writer for the Washington Examiner.
