The American Association of University Professors (AAUP) recently published a draft of their report on the uneven enforcement of Title IX discrimination laws, as enforced by the Obama Department of Education and their Office of Civil Rights (known as OCR). They noted that although Title IX was an effort to allow women to work in higher education, OCR has twisted the law to the point that academic speech is now under fire and threatened.
In their own words, in the opening paragraphs of their report, AAUP stated:
“Currently, sexual harassment consists not only of sexual misconduct, but also of speech taken to create a ‘hostile environment.’ When speech and conduct are taken to be the same thing, however, the constitutional and academic freedom protections normally afforded speech are endangered. We do not argue that speech can never create a hostile environment, nor that all speech is protected, only that matters of speech are difficult to negotiate and always require attention to First Amendment guarantees and to academic freedom. We do argue that questions of free speech and academic freedom have been ignored in recent positions taken by the Office of Civil Rights (OCR) of the Department of Education (DOE), which is charged with implementing the law, and by university administrators who are expected to oversee compliance measures.”
The AAUP found that: “In May 2014, the OCR announced investigations of 55 universities for possible violations of Title IX in their handling of sexual violence and harassment complaints. By September 2015, OCR was carrying out such investigations at 130 colleges and universities and by March 2016, that number had grown to 169 colleges and universities.”
The AAUP blasts the interpretation and implementation of Title IX “currently advanced by the OCR.” Previously, courts ruled on sexual discrimination, not sexual harassment as the OCR is pushing now, the AAUP notes. Also, the AAUP pointed out, “These OCR interpretations conflate speech and conduct – particularly with regard to hostile environment – with little, if any, attention to rights of free speech and academic freedom.” It doesn’t stop there, “Further, OCR has mandated that educational institutions, including universities, reduce the level of due process protections provided in sexual harassment hearings.”
OCR instructed universities and colleges to “ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.” [i.e. due process should not delay Title IX complaints] This is based off of the 2011 “Dear Colleague Letter (DCL) in which the OCR outlined sexual harassment procedures for higher education institutions. An important note that the AAUP made was that, “although it marked a substantial change in procedures, OCR did not engage in the federal administration rulemaking public notice and comment process prior to issuing this 2011 DCL.”
The AAUP was concerned about how it would be enforced, and cited Harvard University law professors who objected to the DCL since it could override due process. A female Harvard professor, Jeannie Suk, was acutely aware of “the racial implications of granting immediate credibility to accusers without due process for the accused.”
Photo by DonkeyHotey 
Photo by DonkeyHotey
