Title IX (of the Education Amendments Act of 1972) is a federal equity law that prohibits sex and gender based discrimination in educational institutions of higher education. Since most colleges and universities participate in the federal student aid programs, they must comply with Title IX.
Title IX Over Time
In its earlier years, Title IX was a tool to address disparities in funding and availability of women’s sports. In the last four years, Title IX has also gained widespread attention in the topics of sexual harassment and sexual assault on our college campuses. Student survivors themselves have helped draw attention to the many areas in which their schools’ approaches to discrimination, especially sexual assault, have not met their needs or complied with federal guidance.
Currently, there are over one hundred colleges and universities under investigation by the Department of Education’s Office of Civil Rights for reported failures to comply with Title IX. The list includes schools in Arizona and Colorado.
Title IX and Academic Freedom
Over the last year, several university faculty members have found themselves in the Title IX spotlight as students complained about offensive classroom content or academic activities. Students have alleged faculty members created a hostile environment through course-related discussions, assignments, and other activities.
One of the most recently publicized instances involved Professor Laura Kipnis of Northwestern University, against whom students at Northwestern filed an internal Title IX complaint. Professor Kipnis had published an essay in the Chronicle of Higher Education that was, in part, critical of her university’s Title IX process. She soon after became a part of the process she referred to as her “inquisition.”
Sexual Harassment or Protected Speech?
Sexual harassment comes in two main forms, of which hostile environment is one type. By the Office of Civil Rights’ (OCR) guidance, determining whether a hostile environment exists requires “that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances.”
According to the OCR, “[t]he more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. Indeed, a single or isolated incident of sexual violence may create a hostile environment.”
Can a faculty member’s essay create an actionable hostile environment? Can classroom discussions? It is easier to imagine the latter than the former. Imagine a class on math in which the instructor repeatedly makes derogatory comments about women’s ability to do math or often brings up talk of sexual activity during problem sets. Over time, such behavior could be both objectively and subjectively offensive enough to create a hostile environment.
Public colleges and universities, however, also must assess whether comments are constitutionally protected free speech. The University of Arizona, for example, in a fact sheet on the First Amendment, declares, “Title IX is intended to protect students from sex discrimination, not to regulate the content of speech. OCR recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX.”
Ideally, such institutions should analyze free speech concerns as part of a gatekeeping function in their Title IX process. Title IX requires that institutions respond to reports of harassment, but it does not mandate that a full investigation with charges of misconduct accompany every report of harassment. Some concerns can be properly dismissed with no formal investigation and charges.
Consequences to Title IX Charges
But what happens if a university fails to properly screen reports that on their face fall short of harassment? What are the possible outcomes?
Many institutions have opaque processes that, viewed in the best light, attempt to maintain privacy of what can be highly personal, highly sensitive conversations and information. Too often, however, the process may also function to keep critical information out of the hands of the person accused of wrongdoing.
The end result of an investigation can sometimes lead to the unravelling of tenure for tenured faculty members and can result in termination for adjunct and permanent faculty. Some schools also impermissibly restrict an accused individual’s ability to publicly share the results of the investigation, even where the accused has been exonerated and wishes to clear her name.
What to Do if Facing a Title IX Investigation
It is entirely possible to find that a student has been deeply offended by a faculty member’s speech or actions and also find the faculty member did not engage in any harassment whatsoever. Such a finding, however, requires fact specific, intensive analysis and appropriate application of state and federal laws and school policies.
Unfortunately, there is no standardized training for individuals tasked with investigating reports of possible Title IX violations. Even with the best of intentions, investigators may not be adequately trained to address the complexities Title IX cases often present.
If a faculty member receives notice that a complaint has been filed against them, formally or informally, it is worthwhile to consult with an experienced attorney as early in the process as possible. Even where an investigation is categorized as “follow up on a report” of possible harassing behaviors with no formal charges, charges can always be added on in the process and lead to lengthy and confusing investigations.
An experienced attorney can help identify a faculty member’s rights and options in the process and address any procedural missteps before they result in further harm.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2015. All rights reserved