Title IX enforcement and interpretation on college campuses can result in a lack of faculty members’ academic freedom essential to teaching and research, according to a report released Thursday by the American Association of University Professors.
The report, titled “The History, Uses, and Abuses of Title IX,” found that multiple investigations regarding sexual harassment and Title IX have violated the academic right to free speech and “also have upended due process rights and shared governance in unprecedented ways.”
The report argued that the Office for Civil Rights’ definition for “hostile environment” is too broad and has increasingly suppressed academic freedom due to the fusion of conduct and speech cases. According to the report, the OCR’s 2011 Dear Colleague Letter did not “include any statements or warnings about the need to protect academic freedom and free speech in sexual harassment cases, including hostile environment allegations.”
AAUP General Counsel Risa Lieberwitz said the report further suggests that OCR should refine its definition of sexual assault and hostile environments to explicitly protect academic freedom of speech.
“[A] hostile environment isn’t simply created by speech that others find disturbing or emotionally upsetting,” said Lieberwitz. “[It] goes way beyond that to … conduct that creates a hostile or abusive environment that would interfere with access to educational programs or benefits.”
The report also recommended a number of practices for the OCR, the Department of Education, university administrators and faculty members to implement Title IX in a fair and equal manner to all aspects of university life, particularly to maintaining academic freedom.
Recommendations include “the need for all Title IX policies to be developed through shared governance … the need to provide due process for both complainants and accused, whether or not in coordination with the criminal justice system,” the report stated.
Lieberwitz said after working on this issue for over a year, the AAUP has noticed inconsistencies in Title IX application in a number of on-campus cases.
“We thought it was important … because of the pattern of cases that we were seeing regarding the application of Title IX in ways that were going beyond what would be an appropriate use of Title IX,” Lieberwitz said.
The report cites several such cases, including that of Northwestern University Professor Laura Kipnis, whose article published in the Chronicle of Higher Education elicited complaints from students who believed she created a “hostile environment” for “making passing allusion to other sexual assault and harassment cases on the campus.”
“[Kipnis] should never have been required to go through some kind of extensive interview … as part of a Title IX investigation,” Lieberwitz said. “The university administration has an obligation to use their judgment … to say that ‘this is an article that a professor wrote … and that there’s no evidence that the article she wrote created any kind of hostile environment.’”
However, the issue is not just one of academic rights, as Lieberwitz expressed concerns of the “chilling effect” these cases may have on other faculty.
“This can lead to self-censorship by faculty,” Lieberwitz said. “That chilling effect has a very negative effect on our ability to teach in many areas including controversial subjects that require people to talk about issues that are uncomfortable … or that upset people. That’s all part of the teaching and the learning process.”
Several Boston University students said talking about uncomfortable topics should not be enough to constitute a hostile environment.
Kate Wittkowski, a freshman in the College of Arts and Sciences, said interpretations are subjective, and a case against sexual harassment based on speech should require substantial evidence.
“It’s hard to really base a case like [sexual harassment] on speech,” she said. “Things can be taken out of context or misinterpreted. It’s all conjecture unless the intent to create a hostile environment is clearly evident.”
Laila Kim, a junior in the Questrom School of Business, said she believed professors have the responsibility to teach uncomfortable material professionally.
“If you’re enrolled in a class that discusses sexual harassment, you should be prepared to discuss topics like that,” she said. “As long as the professor is teaching professionally, that shouldn’t really be a hostile environment.”
Junhao Gao, a sophomore in CAS, also agreed that speech on an uneasy topic is not enough to charge someone with sexual harassment.
“If a student is in a class that deals with an uncomfortable topic, speech in that class isn’t necessarily harassment,” he said. “Just because a student is uncomfortable doesn’t mean the professor created a hostile environment. The professor has to do his or her job.”
