The Obama administration’s Office for Civil Rights in Education—the zealous government agency that has, over the last five years, unilaterally reshaped sexual assault procedures at campuses across the country—has a surprising new critic: The left-leaning American Association of University Professors. The flagship organization of U.S. college faculty has just released a major report, authored by its Committee on Academic Freedom and Tenure and its Committee on Women in the Profession, sharply criticizing the role of federal Title IX enforcement in curtailing civil liberties for students and faculty alike. An excerpt from the document (h/t Inside Higher Ed):
The issue of what constitutes a hostile environment has been contentious under both Title VII and Title IX, but the university context raises distinctive issues, particularly when speech rather than conduct is in question. To what extent can speech be subject to the same regulations as assault, as has been increasingly the case in recent years? What are the consequences of such an equation in a university setting where there must be a careful balance between an interest in preventing or punishing hostile environment sexual harassment and an interest in academic freedom, including free speech, shared governance, and due process? How can care be exercised to protect students’ and employees’ equal rights and safety without violating rights of academic freedom or free speech? These questions were considered central to Title IX enforcement in the last decades of the 20th century; this has not been the case at least since 2011.
In 2011, the Office for Civil Rights issued its controversial “Dear Colleague” letter, redefining the federal government’s role in campus sexual misconduct disputes and dramatically weakening the due process protections for students accused of sexual misconduct. While previous federal guidance to colleges on dealing with sexual harassment had included precautions against infringing on civil liberties, the 2011 document contained no such language. Indeed, a (since-revoked) follow-up order issued in 2013 instructed colleges to adopt a definition of sexual harassment that was almost certainly unconstitutionally broad. The OCR also put dozens of colleges under an lengthy and arduous disciplinary process, pressuring administrators to discipline more students and faculty. In a forthcoming law review article, Harvard Law professors Jacob Gersen and Jeannie Suk describe the “Dear Colleague” letter as part of the impetus for what they call “bureaucratic sex creep”—the enlargement of regulation surrounding sexual conduct that has the effect of eroding protected personal liberties.
The politics of this debate are complicated, and its future uncertain. The Obama administration has wielded Title IX as a tool to satisfy and placate campus left-wing activists even as it disappointed them on more significant policy areas. Meanwhile, the GOP Congress has—belatedly—started to question the administration’s authority to intervene so aggressively in campus disciplinary processes without Congressional approval. Without more robust Congressional or judicial intervention, a Hillary Clinton administration seems likely to ratify the current OCR’s posture (or go even further). But if key academic constituencies are starting to rebel in a major way, then perhaps even the existing sex bureaucracy will be hard to sustain.