The applause from the cheap seats couldn’t be missed. There is a report, from no less an august body than the American Association of University Professors. And for the first time in recent memory, the report didn’t gush about the need to do everything possible to end the plague of campus rape and hate speech.
That’s why there was applause. Woo hoo!
As a result of committed student and faculty activism, the topic of sexual harassment and assault within universities1 has entered the national spotlight. Renewed attention to these problems has been met by a federal push to establish universities’ compliance with Title IX of the Education Amendments of 1972. Yet Title IX’s track record has proven to be uneven. Success stories about compelling universities to address problems of sexual assault, such as those recounted by student campus groups,3 are matched by reported cases in which university administrators fail to punish gross and repeated sexual harassment, or where Title IX administrators from the Department of Education and within the university overreach and seek to punish protected academic speech. These cases have compromised the realization of meaningful educational goals that enable the creation of sexually safe campuses; they also have upended due process rights and shared governance in unprecedented ways. [Emphasis added.]
Ignore all those other words, and just focus on the ultimate clause. And in fairness, the fact that the AAUP even raises questions about due process and shared governance is remarkable.
But to get there, the report runs through the “history and uses” of Title IX before it gets to the “abuses.”
Sexual harassment is not mentioned in the Title IX legislation itself, nor in Titles VI and VII. The first judicial recognition that sexual harassment constituted a form of sex discrimination came in 1977, when the D.C. Circuit Court of Appeals held that Title VII applied to a claim alleging that a supervisor sought sexual favors from an employee seeking promotion. That same year in Alexander v. Yale University, the federal Second Circuit Court of Appeals allowed a case to be heard in which sexual harassment was claimed as a violation of Title IX. The court ultimately found that the plaintiffs failed to prove their case, but the recognition of sexual harassment as a form of sex discrimination remained in place.
Well, a case citation and everything. That’s enough to make it real, right? Except the circuit didn’t hold anything of the sort. This was part of Catherine McKinnon’s effort to convert Title IX into a weapon by which feminists could cut the throat of colleges that failed to capitulate to their demands, and their demands were to create an educational environment where their feelings controlled speech and conduct. But you would think from the AAUP report that the women prevailed. They didn’t. They crashed and burned, just as they did in the district court. Just the opposite of what the AAUP report suggests.
A logical prerequisite is that there be a sufficiently defined wrong under the statute invoked, and claims for relief adequately presented by the parties plaintiff. In this regard, it should be stressed at the outset that while the complaint deserves generous reading, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), the question is not so much the customary one on motion to dismiss whether plaintiffs could conceivably prove facts calling into play an established right of action as instead whether any circumstance depicted genuinely impels judicial creation of a new suit right, cf. Turpin v. Mailet, Civil No. N-75-181 (D.Conn. May 13, 1977). Such an approach is surely also consistent with Title IX’s aims, for the statute is clearly addressed to specific practices of exclusion, inequitable resource allocation and similar concrete abuses. So viewed, most claims advanced in this action are tenuous indeed.
Because the court didn’t completely foreclose any possibility of a viable claim, the holding has been twisted into a win. See? They didn’t call us totally batshit crazy, so that means WE ARE RIGHT!!! Not quite.
Some in the cheap seats are willing to forego criticism of the myth surrounding Title IX, turn a blind eye to the shockingly false history propounded by the AAUP and allow it to meld into the fantasy that Title IX supports the Department of Education, Office of Civil Rights, imposition of its will on higher ed, even though it means males are sacrificed on the altar of female tears. After all, at least the report came out in favor of due process, right?
Well, kinda, except not for you.
Since 2011, however, the emphasis has changed. OCR now conflates conduct and speech cases. 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. Further, while the 2011 DCL focuses on student-on-student sexual violence, it adds that the same principles of enforcement will apply to all types of sexual harassment cases, which include speech or conduct of a sexual or non-sexual (but gender-based) nature. [Empasis added.]
Foreshadowing, kids. While there is mention of the elevation of the need to silence all speech that hurts feelings, whether for real or in theory, and the deprivation of due process in general, the focus of the report, and its detailed complaints, are directed toward how Title IX affects the AAUP’s interest group, professors like Laura Kipnis, academic freedom and, significantly, university governance. Hat tips are included to student newspapers defunded for “hurtful” satire, but they’re not going to war over principle. So what is the point of this report?
The answer depends in part on what counts as sex discrimination–particularly what conduct or speech (and in what amounts) can support a charge of hostile environment. While financial cuts and program eliminations have threatened entire disciplines and methods of producing knowledge, struggles over the importance and scope of academic freedom v. sex discrimination have also flared across campuses nationwide. From trigger warnings to tweets, the AAUP has documented an increase in potential threats to the academic freedom that protects teaching, research, and extramural speech, and fosters shared governance by university administrations, students, and faculty.
It’s hard to blame the AAUP for seeing the world through the enlightened self-interest of their members. Hell, isn’t that the way police unions have enjoyed PR success? But the conflicted approach, that incorporates the total fantasy of a Title IX that commands that the academic world revolve around feelz because the law says so, is in there next to their deep concerns that it went too far when it touched their members. And it leaves the rest of us still holding our own, fantasy world largely intact but for their call to leave professors out of the otherwise critical war to end campus sexual harassment.