The American Association of University Professors released for comment a draft report on Title IX and academic freedom. More on it--including the full report--can be found at http://www.aaup.org/report/history-uses-and-abuses-title-ix. Several organizations have responded, including Faculty Against Rape (FAR). We agree with the concerns that FAR has raised, but also have our own. We sent the following electronic letter to the AAUP on April 15, 2016.
Dear American Association of University Professors,
At the Sexual Assault Network for Grads (ixgrads.org), we represent the interests of graduate and professional students as regards sexual harassment and sexual assault in academia. We have read and appreciate the concerns FAR has raised in their letter on the AAUP's draft report, “The History, Uses and Abuses of Title IX," but would like to add our own voice. As graduate and professional students, we occupy a unique niche in the potential conflict of recent application of Title IX and issues of academic freedom. We are protected by Title IX while also heavily invested in free speech. In many cases we look ahead to future roles as faculty or exercise current roles as instructors in more precarious positions than faculty.
Given this, we would like to raise a number of concerns about “The History, Uses and Abuses of Title IX.” First, we strongly disagree with the AAUP’s recommendation of the clear and convincing standard of evidence in cases of university-adjudicated sexual harassment and sexual assault. Raising the standard of evidence above a preponderance of the evidence means subjecting these accusations to a higher degree of scrutiny and doubt than most other university procedures and, indeed, many civil cases. Although, of course, “some sexual assault cases are criminal cases” (AAUP 47), universities do not conduct criminal trials in which incarceration is a potential outcome for the accused; equating these separate processes, outcomes, and goals is irresponsibility on the part of professional intellectuals.
The preponderance of the evidence standard, in which accusations must be proven to be more likely than not, weights the voices of both parties equally, reserving a modicum of benefit of the doubt for the accused. In contrast, a stricter standard of evidence—especially in the service of protecting faculty, as the AAUP seeks to do—implicitly finds any faculty member more credible than any student. This may be the position that the AAUP wishes to take, and as (in cases) instructors ourselves we can sympathize. We do, however, ask that the AAUP explicitly consider the ramifications of and rationale behind discrediting students, including graduate and professional students, and exacerbating systemic disbelief of victims of sexual violence and sexual harassment.
Although the AAUP cites cases of restricted academic speech, these appear to stem from a misplaced fear of the OCR. (On the AAUP's general misrepresentation of the OCR's role in campus cases, we share the concerns raised by FAR.) In the context of a full and fair hearing, we wonder what pedagogical scenarios the AAUP wishes to protect that could more plausibly than not be deemed sexual harassment.
If one of the AAUP’s main concerns is the damage resulting from an accusation, then altering the standard of evidence to disempower victims does not address this concern. In this era of widespread media attention, accusations can ignite indignation and protest regardless of university procedure; this particular threat to academic freedom should be dealt with through other avenues. Nor does this threat of social and professional repercussion limit itself to the accused, and in our view the free speech of victims of sexual assault and sexual harassment suffers far more restriction in practice than academic freedom does in the classroom.
Victims' academic freedom does not fare any better when applied to cases that do proceed through the formal hearing process. The rare convictions are frequently hushed up. We see among our peers silence, discouragement, and, all too frequently, defeat and disengagement in the face of entrenched harassment. The AAUP should consider each such retreat from academia to be a defeat for its own cause and its own future.
We are deeply troubled by the trend in allegations of Title IX abuse, reflected by the AAUP’s report, in which every case mentioned relates to female professors. We suggest that there is a gendered disparity in the university administrative application of Title IX, in which female professors are fired for speaking about sex while male professors receive minimal to no penalty for sexual violence.
We are also troubled by the approach the AAUP takes to faculty in its discussions of shared governance, in which faculty are portrayed as impartial and inhumanly above the fray of student-on-student violence, taking collateral damage from unconsidered regulations about harassment. As the emerging conversation around sexual violence in higher education has shown, faculty are implicated in these systems of violence, and at their worst can constitute a defensive body which protects serial perpetrators of violence. Their best inspires several of us to imitate and seek to join them, but we ask in the meantime that the AAUP report call for more self-reflection and internal action by faculty in addressing these problems.
In the AAUP’s proposed language surrounding sexual harassment, that “[i]n order to establish a violation of Title IX, the harassment must be sufficiently serious to deny or limit a student’s ability to participate in or benefit from the education program,” we ask for a clarification of what participating in and benefiting from an education program mean to the AAUP (47). We agree with the language but fear we may disagree on its application. For example, we argue, any student’s hesitation to interact with a faculty member due to well-founded fear of harassment impedes participation in an education program.
Where the AAUP suggests that efforts to comply with Title IX have elevated “reporting protocols and internal processes...over holistic challenges to prevailing gender and sexual norms,” we observe that clear protocols and processes are, in fact, crucial for both accuser and accused, and not necessarily at odds with (vague and unspecified) holistic change (37).
We request a change to the language on page 51 in which the report suggests that at times “the criminal justice system must be involved in sexual misconduct allegations.” This is legally false and does a disservice to victims by restricting their options.
Finally, we are perplexed by the AAUP’s repeated attempts to differentiate sexual harassment from other forms of sexual violence, “particularly where it involves only speech” (46). Not only are sexual harassment and sexual assault on the same spectrum, and similar in the challenges they pose to completing an education, but when so much of our work relies on the power and significance of speech—when this report takes as a premise the importance of defending free academic speech—then we cannot with any logical consistency, and must not for moral reasons, diminish the effects and severity of sexual harassment when it is “only speech.”
The Sexual Assault Network for Grads