AAUP Emphasizes Academic Freedom in Title IX Hearing

AAUP general counsel Risa Lieberwitz testified at a hearing held by the US Department of Education’s Office for Civil Rights to gather information for the purpose of improving enforcement of Title IX of the Education Amendments of 1972.

The AAUP’s comments relate to faculty in institutions of higher education (including all faculty, librarians, and graduate student employees). The comments focused on four elements that are essential to achieving gender equity in institutions of higher education:

1. Free Speech and Academic Freedom. Title IX regulations should make clear that rights of free speech and academic freedom continue to apply in cases that do not involve assault or other forms of physical misconduct, but are otherwise alleged to constitute a hostile environment.
2. Due Process. Faculty, like students, need the protections of due process provided in grievance procedures. These procedures should be the result of faculty participation in the creation of university policies.
3. Faculty Governance. For faculty, shared governance and/or collective bargaining processes are forums in which faculty participate in drafting Title IX-related policies and procedures because these have a direct impact on the educational environment and on faculty employment conditions.
4. Analysis of the sources of inequality. To achieve the goals of Title IX, gender equity issues should be addressed within the context of more comprehensive assessments of the bases for inequality—including race, class, sexuality, disability, and other dimensions of social difference—both on and off campus. Attention to these concerns will promote students’ access to quality education and—equally important—the faculty’s ability to provide it.

Among the AAUP’s specific recommendations for amending the current Title IX regulations to enhance these four elements to achieve gender equity in institutions of higher education are the following:

• The regulations should add positive protections for freedom of speech and academic freedom;
• The regulations should use a standard of “severe or pervasive” to define hostile environment harassment, rather than “severe, pervasive, and objectively offensive”;
• The regulations should eliminate the use of “actual knowledge” and “deliberately indifferent” standards to assess an institution’s response to sexual harassment;
• The regulations should prohibit institutions of higher education from requiring all employees, including faculty, to be “mandatory reporters”;
• The regulations should mandate grievance procedures for complaints of sexual harassment that provide adequate levels of due process, including the use of the “clear and convincing” evidence standard;
• The regulation’s reference to “emergency removal” and “administrative leave” should be carried out with due process protections;
• The regulations should consider as a positive factor that a higher education institution engages in shared governance processes to develop and implement Title IX-related policies;
• The regulations should be amended to clarify that Title IX coordinators should be knowledgeable about the workings of the university and experienced in dealing with relationships among students, faculty, and other employees;
• The regulations should be rewritten to deny religious exemptions from compliance with Title IX regulations on sexual harassment.