Study Says Harassment Rules Stifle Campus Speech

A new report about federal sexual harassment rules on college campuses and their effect on free speech has plenty of people in academia talking.

The report from the American Association of University Professors, “The History, Uses, and Abuses of Title IX,” was released on March 24. In it, the report’s authors find multiple points of concern with Title IX, a federal law passed in 1972 that prohibits gender discrimination in any U.S. education program receiving federal assistance. “The current interpretation, implementation, and enforcement of Title IX,” they write, “has compromised the realization of meaningful educational goals that lead to sexually safe campuses.”

More specifically, the report cites instances where college professors have been criticized or investigated for not delivering “trigger warnings” when delivering potentially objectionable material. The AAUP report argues for a distinction between sexually harassing speech that creates a hostile environment and speech that addresses controversial subjects.

“We need to protect academic speech and the freedom that goes with academic speech, as well as due process,” Risa L. Lieberwitz, AAUP general counsel and chair of the subcommittee that drafted the report, told The New York Times. “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.”

One source of that scrutiny—and a particular target of the report—is the Education Department’s Office of Civil Rights, which the AAUP report challenges to “[protect] students from sex discrimination, while also protecting academic freedom and free speech in public and private educational institutions.”

The American Council of Trustees and Alumni praised the report in a statement, criticizing OCR as a “coercive bureaucratic regime.” However, Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, an umbrella group of campus organizations, told Inside Higher Ed that OCR was applying standards that most colleges and universities already have in place, and that the new scrutiny of speech on campus reflects a change in standards about how sex and gender are discussed on campus, not a flaw in Title IX or its application by the Education Department.

“Members of the campus community are becoming much more intolerant of minor to midlevel misconduct by faculty members,” Sokolow said. “There is a public sentiment rather than rules-based approach that this report doesn’t recognize. Being that creepy guy has suddenly become not OK.”

Sokolow also serves as executive director of the Association of Title IX Administrators, which was created in response to the increased amount of Title IX-related litigation. According to the Times, ATIXA’s membership has doubled in size each of the past two years.

In addition, Jennifer Freyd, a psychology professor at the University of Oregon, told Inside Higher Ed that the report likely understates the negative impact of sexually hostile words on campus, pointing to research that shows negative outcomes for students who were sexually harassed by faculty or staff.

AAUP’s draft report is currently open for comment, and a final report is planned for release later this spring.