The Uses and Abuses of Title IX

In June, the AAUP will publish the final version of a report on Title IX, the law designed to prevent sex discrimination in educational programs that receive federal funding. Prepared by a joint subcommittee of Committee A on Academic Freedom and Tenure and the Committee on Women in the Academic Profession, The History, Uses, and Abuses of Title IX identifies tensions between current interpretations of Title IX and principles of academic freedom. It finds that questions of free speech and academic freedom have been ignored in recent positions taken by the Office for Civil Rights of the Department of Education, which is charged with implementing Title IX, and by university administrators who are expected to oversee compliance measures.

While successful resolutions of Title IX lawsuits are often represented as unqualified victories in the name of gender equality, the report concludes that the current interpretation, implementation, and enforcement of Title IX has compromised the realization of meaningful educational goals that lead to safe campuses. Since 2011, the deployment of Title IX has also imperiled due-process rights and shared governance. The report thus emphasizes that compliance with the letter of the law is no guarantee of justice.

The report identifies key areas of Title IX as threats to the academic freedom essential to teaching and research, extramural speech, and robust faculty governance. Critically, according to the report, the current focus of Title IX on sexual violations has been accompanied by regulation that conflates sexual misconduct (including sexual assault) with sexual harassment based on speech. This has resulted in violations of academic freedom through the punishment of protected faculty speech. The report finds that recent interpretations of Title IX are characterized by an overly expansive definition of what amounts to sexual assault and the kinds of speech that create a “hostile environment” in violation of Title IX.

Finally, the report reveals that the current interpretation, implementation, and enforcement of Title IX can actually exacerbate gender and other inequities on campus. Recent student activism protesting institutionalized racial biases in universities reveals the need to ensure that Title IX enforcement initiatives do not, even unwittingly, perpetuate race-based biases in the criminal justice system, which disproportionately affect men who are members of racial minority groups. The report also cautions against the extraction of gender equity from more comprehensive assessments of bases of inequality—including race, class, sexuality, disability—both on and off campus. It concludes with recommendations for how best to address the problem of campus sexual assault and harassment while also protecting academic freedom, free speech, and due process.