Report: Federal Rules Against Sex Discrimination Clash with Free Speech on Campus

A new report says patterns have emerged related to using Title IX in unintended situations.

By Hady Mawajdeh & Leah ScarpelliApril 5, 2016 12:41 pm

The past few years have been rocky for collegiate sports: sexual assault cases against Baylor football players and other big time programs, discrimination against homosexual athletes. Now there’s talk of teammates dating – and their coach suspending them because of it – at Prairie View A&M University.

The story from Prairie View underscores what many on the academic community have seen recently – that in the current climate, a collegiate crackdown on sexual violence uses Title IX as a blunt cudgel, in ways that lead to outcomes which may actually undermine the statute’s original goals.

It’s a conversation beginning to emerge across the country, catalyzed by a report called “The History, Uses, and Abuses of Title IX” from the American Association of University Professors (AAUP).

Risa Lieberwitz, a professor of labor and employment law at Cornell University and general counsel of the AAUP, chaired a committee that prepared the report.

Lieberwitz says though Title IX was initially framed in terms of bolstering women’s athletic programs, it was adopted to address broader problems in higher education: pay equity, female representation in administrative roles, and discrimination based on gender.

“Title IX was designed to move us toward greater gender equality in all those areas,” she says. “But, particularly in the last few years, the attention through the media and other discussions have overly narrowed our view of Title IX.”

Title IX regulates quid pro quo sexual harassment cases, in which a professor says a student’s grade or a boss says an employee’s raise is contingent on sexual favors. Lieberwitz says the AAUP report isn’t concerned about those instances.

“We recognize that there are many instances of sexual misconduct that should be prohibited and should be regulated under Title IX,” she says. “Of course those need to be prohibited, remedied and prevented. But there are other kinds of areas that are less easy to define.”

Patterns emerged related to using Title IX in what Lieberwitz calls “hostile environments” – these are instances when abusive speech or conduct, like touching, create an unsafe and uncomfortable environment for someone. In general, regulations related to speech run into issues of freedom of speech.

“Our concern was the pattern we were starting to see of Title IX being used to take punitive measures, or threaten to take punitive measures, against faculty because of their speech,” she says.