The U.S. Department of Education Office for Civil Rights has pushed colleges and universities toward acting more like corporations in handling sexual assault and harassment cases, a new report argues.
Many schools working to change their policies to better comply with the gender equity law Title IX are doing it solely to avoid federal investigations and lawsuits, not to actually stamp out sexual violence on campus, the American Association of University Professors claims in a draft report released Thursday. In the process, they say, many policies are endangering academic freedom and due process rights of faculty and students.
“This client‐service model can run counter to universities’ educational mission when, as in the case of Title IX, universities may take actions that avoid OCR investigations and private lawsuits but that do not significantly improve gender equity,” the report says.
Instead, the AAUP argues, these steps may “actually exacerbate gender and other inequities on campus.”
Sexual violence in college has received widespread attention in recent years, largely prompted by student activism and complaints that universities mishandled cases, treating victims poorly. There are over 200 ongoing investigations by OCR of colleges allegedly mishandling sexual assault cases.
In response, schools have reformed their policies, either due to activist or media scrutiny, or under pressure by guidance released by OCR. Those efforts haven’t been productive, according to AAUP, and often skimp on “comprehensive assessments of bases of inequality.”
For example, colleges and the Education Department would do well to focus on improving “conditions of interdisciplinary learning on campus by funding gender, feminist, and sexuality studies, as well as allied disciplines.” In other words, if schools focused more effort toward actually educating students about sex-based discrimination, they would be more effective at shifting cultures on campus.
The Education Department denied there is any conflict between its enforcement of federal civil rights laws and First Amendment rights on college campuses.
“The Office for Civil Rights has consistently maintained that the statutes and regulations it enforces protects students from prohibited discrimination and do not restrict the exercise of expressive activities or speech that are protected under the First Amendment of the U.S. Constitution,” Dorie Nolt, Education Department spokeswoman, said in a statement this week. “Free speech and safe, equitable and respectful learning environments for students are both fundamental rights, and they are not in conflict.”
Recommendations From AAUP’s Report
The AAUP report discusses the initial implementation of Title IX from the 1970s, and how a series of court decisions ultimately concluded that schools are obligated to address sexual harassment involving their students, with sexual assault being an extreme form of harassment.
But today, OCR is interpreting what constitutes a “hostile environment” due to sexual harassment too broadly, AAUP said. The report cites several recent cases involving faculty, like those at Louisiana State University and Northwestern University, as prime examples of schools going too far in their Title IX interpretation. In addition, dozens of men are suing colleges saying they were treated unfairly when disciplined for sexual misconduct.
AAUP goes on to criticize OCR for not giving enough attention to due process in sexual assault cases, and raps the agency for advising schools to use the “preponderance of evidence” standard, meaning it is more likely than not an accusation of assault is true, rather than “clear and convincing,” which means being reasonably certain about the accusation. The preponderance standard is used in civil litigation, but AAUP said the Office for Civil Rights should have allowed for feedback from institutions before dictating that schools must use it to comply with Title IX.
Republicans in Congress recently challenged Education Department officials on the same point.
Officials with the Education Department pointed to guidance in 2014 and 2015, which reminded that “when a school works to prevent and redress discrimination, it must respect the free-speech rights of students, faculty, and other speakers.”
While AAUP would prefer schools use the “clear and convincing” standard, it asks that OCR at least allow colleges and universities to choose whether or not to use that standard.
The report further calls on universities to include faculty more in determining how their policies will comply with Title IX. Faculty could provide insight on writing policies to address sexual assault and harassment, without violating academic freedom, the AAUP suggests.
Universities need to “distinguish speech that fits the definition of hostile environment from speech that individuals may find hurtful or offensive but is protected by academic freedom,” AAUP said, arguing that many schools are blurring the lines between the two.
Schools should also work toward “closer collaboration with local law enforcement” to better carve out how they’ll each handle sexual assault cases, the report adds.
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