On May 6, the Department of Education (ED), under Secretary of Education Betsy Devos, released new Title IX regulations. Title IX was first written into law as part of the Higher Education Act of 1965 with the purpose of banning sex discrimination at colleges and universities receiving federal funding. It was last amended by ED in 1998, and its implementation since 2011 has been influenced by Obama-era guidance documents.
A law that was originally designed to protect educational opportunity for women is now used as the primary means of adjudicating campus sexual misconduct cases. This has generated considerable controversy—and confusion—because of the seriousness of the topic and because agency guidance and regulations to implement the law have been both unclear and, at times, overbearing.
Institutions receiving federal funds feel pressured to find and punish sexual assailants, but some complainants claim that campus officials do not investigate allegations promptly or seriously. Meanwhile, those accused of sexual misconduct often say their due process rights are violated by Title IX Offices when they are denied the presumption of innocence, are not informed of charges against them, or are removed from campus without the opportunity to respond. More than 500 of these cases have ended up in court.
ED’s new regulations come as a welcome change to the often lawless status quo. Title IX now includes greater support for sexual misconduct complainants, strengthened protections for the due process rights of accused students, and the presumption of innocence rather than guilt. To most people, such measures seem modest, common sense, and reasonable.
The American Association of University Professors (AAUP) isn’t so sure. Just over a week after the new regulations were issued, AAUP published a formal response affirming some parts of the regulations and critiquing most others. Because the organization holds such strong influence within higher education, we at the National Association of Scholars (NAS) published our own critique of their response, spearheaded by our Title IX Project Director Teresa Manning.
NAS is in partial agreement with AAUP’s response to the new regulations. In particular, we agree with AAUP’s concerns regarding academic freedom, free speech, mandatory reporting, the standard of proof and emergency removal from campus.
Title IX has been improperly invoked to threaten faculty who should have been protected by academic freedom but who were instead subjected to Title IX investigations because their work touched on sexual themes. “Mandatory reporting” would require all members of the campus community to report sexual misconduct and increases the likelihood of a “police state” atmosphere on campus where overheard conversations can form the basis of a Title IX investigation. Additionally, NAS joins AAUP in favoring the higher burden of proof to determine responsibility for sexual misconduct—that is, that the evidence submitted to prove guilt of such a serious charge must be “clear and convincing,” rather than the lower burden, the preponderance of evidence.
In certain provisions of the AAUP response, however, NAS notes that AAUP has changed course, perhaps even reversed course, on its concern for academic freedom, due process, and free speech to favor complainants alleging sexual misconduct in campus Title IX proceedings. For example, in 2016, the AAUP criticized the definition of “hostile environment” sexual harassment as too broad and recommended the Supreme Court standard; it now criticizes the Supreme Court standard, complaining that it is “overly narrow.” This sort of backtracking is alarming and does not speak well to AAUP’s current trajectory.
AAUP summarizes its reaction to the new regulations as follows:
Overall, the regulations represent small steps forward in some areas and large steps backward in others. Parts of the new regulations will make it more difficult for victims of harassment to come forward and for the perpetrator to be held responsible, thus making it easier for harassment to be minimized. The standard for harassment has been overly narrowed, the responsibility of the university to address harassment has been excessively limited and the evidence needed to prove harassment has been increased significantly. […] While [some] protections are welcome, [they] are overshadowed by the overall regressive nature of the proposed regulations.
NAS finds these characterizations of the new regulations not only unwarranted but out of sync with the AAUP’s prior work on Title IX.
In truth, the regulations go a long way toward restoring balance in campus Title IX proceedings and especially in protecting the due process rights of a student accused of sexual misconduct. NAS would ask that the AAUP return to the principles of its former work on Title IX. That approach exhibited care and balance and a special regard for the university setting—in short, an approach fitting to an organization of university professors.
Image: William Cho, Public Domain