Restore Common Sense to Title IX

April 7, 2016

Title IX of the Education Amendments of 1972, prohibiting sexual discrimination in programs receiving federal aid, is widely known for promoting women in athletics and faculty hiring.

But recent efforts to use Title IX to stem sexual misconduct have produced a side effect: The Law of Unintended Consequences.

The U.S. Department of Education has demanded colleges respond promptly and effectively when having a reasonable knowledge of sexual harassment or violence; that if a student or parent wouldn’t file a complaint, the college still had to resolve the situation; and even a criminal investigation didn’t preclude a duty to act.

In a 2014 Catherine Lhamon, the assistant secretary of DOE’s Office of Civil Rights, said colleges could lose federal funding if not complying. “Do not think it’s an empty threat.”

More than 200 colleges and universities now are being investigated for their handling of sexual misconduct — from sexual assaults to harassment — compared to 55 two years ago.

The Association of Title IX Administrators, which didn’t exist five years ago, now boasts 5,000 members, according to the New York Times. Coordinators can earn $50,000 to $150,000 annually. Schools are spending $25,000 to $500,000 on informational campaigns.

Brent Sokolow, head of the association, told the Times “dealing with an inquiry could cost ‘six figures,’ and that responding to a lawsuit ‘can run into the high six or even seven figures, not counting a settlement or verdict.’”

Adjudicating sexual assault cases is difficult under any circumstances. The stigma of rape has persuaded countless women to remain silent. Historically, the legal system has been slow to accommodate victims. Meanwhile, high-profile campus cases have prompted questions about fairness.

Florida State University paid former student Erica Kinsman $950,000 in January to settle her suit after the school failed to investigate her allegations of rape in 2012 by quarterback Jameis Winston, who would become the 2013 Heisman Trophy winner.

Jack Montague, Yale’s basketball captain who was expelled in February, is suing the school. He was accused of nonconsensual sex with a female student who never filed a complaint but discussed the matter with a Title IX coordinator a year afterward. The university’s independent investigator determined they had consensual sexual relations four times, including the night of the alleged incident before she voluntarily returned to his room to get into bed.

A “hook-up” culture encouraging casual sex and impairment due to alcohol and drugs complicate matters. In a Massachusetts Institute of Technology survey, 10 percent of female undergraduates stated they had been “sexually assaulted,” while 44 percent admitted having sex while incapacitated by alcohol or drugs.

Some colleges have instituted “affirmative consent” requiring a “yes” — sometimes documented — before a kiss and every subsequent action.

Harvard Law professors have objected to a conflict with the college’s Title IX office investigating and determining outcomes, while using the lowest legal standard, a preponderance of evidence (also used in Yale’s Montague case).

Professor Janet Halley, a feminist, told the student newspaper she is concerned the sexual-assault debate focuses on women as victims, advancing “an image of women that really forgets the power that women have,” while failing to offer necessary protection for the accused.

Professors want protection, too. They’re wary of student accusations and demands for “trigger warnings” about possible sexually offensive material.

“We need to protect academic speech and the freedom that goes with academic speech, as well as due process,” said Risa Lieberwitz, general counsel for the Association of American University Professors, which recently issued a 55-page report on the matter “Universities are acting in a way that is overly precipitous as well as applying overly broad definitions of sexual harassment because they are afraid of scrutiny.”

Patti Adler, a University of Colorado sociology professor, was investigated when some students complained about teaching assistants role-playing as pimps and prostitutes in her Deviance in U.S. Society class, which she taught for more than 20 years. She was threatened with termination, retiring a semester after the administration relented.

Northwestern University’s Title IX office investigated feminist film professor Laura Kipnis after she wrote about “sexual paranoia” on campus for the Chronicle of Higher Education. When Faculty Senate head Stephen Eisenman called the probe a threat to academic freedom, he faced Title IX charges.

The liberal publication The Nation recounted how author David Samuel Levinson, a fellow at Emory University in Georgia, reluctantly raised a female’s student from B-plus to A-minus at the behest of administrators after she made a sexual harassment threat, even though he’s gay.

As Shira Tarrant, a feminist professor at Cal State Long Beach, told The Nation, “Ways of communicating on Twitter, or takedown culture, are infusing the classroom.”

These Title IX initiatives may be well intended, but due process and common sense have left the building. They desperately need to be let back in.