In recent years higher education has been roiled by new challenges. We hear constantly about threats to free speech, typically originating from students protesting right-leaning (or putatively right-leaning) speakers or professors. Fanned by conservative pundits, altercations at Evergreen, Middlebury, and other schools have consumed the lion’s share of media attention. Yet something equally corrosive to higher education has flown under the radar: the wanton abuse of Title IX of the Civil Rights Act. This has cost universities and taxpayers untold millions of dollars, and destroyed many lives in the process. Yet institutions of higher education have been largely successful in keeping Title IX cases out of the spotlight.
Public scrutiny has finally arrived, most prominently in the work of Northwestern University scholar Laura Kipnis. Her April 2017 book, Unwanted Advances: Sexual Paranoia Comes to Campus, is a sweeping indictment of how Title IX, originally intended to remedy campus sexism, has become a blight on American higher education.
Most people think of Title IX in relation to women’s access to college sports, but in fact it mandates gender equity in all aspects of higher education. Its purview was greatly expanded in 2011 by the federal Department of Education. In response to public concern about campus sexual assault, the DoE’s Office of Civil Rights issued instructions to all American institutions of higher learning. This so-called “Dear Colleague” letter directed colleges and universities to begin pursuing sexual harassment and sexual assault allegations under Title IX, and to employ a minimal burden of proof, the “preponderance of evidence” standard, otherwise known as “50 percent and a feather.” (Previously college investigations of sexual misconduct had relied on the more rigorous “clear and convincing evidence” standard used in many civil proceedings.) Schools were given only vague guidelines about how to proceed, and faced pricey compliance reviews if they showed insufficient vigor in ferreting out misconduct. The stage was thus set for a witch hunt. Federal legislation originally intended to promote gender equity in higher education became a framework for punishing things like a faculty member’s poorly conceived test question about bikini waxing.
No civilized person feels that sexual assault or harassment shouldn’t be met with decisive enforcement. Most observers of campus life agree that universities have sometimes turned a blind eye towards rape, even in recent years. I share in the loathing and anger when confronted with sexual harassment or assault on campus (or elsewhere), especially when these crimes haven’t been investigated and prosecuted with vigor. I also support the broader aims of Title IX with respect to gender equity in higher education (my 2013 book Do Babies Matter? Gender and Family in the Ivory Tower addressed the barriers female academics face).
But many Title IX cases have nothing to do with assault or sexual harassment. I learned this first hand when I unexpectedly faced a complaint last year.
Consistent with usual practice, I was not immediately notified that I was facing sexual harassment charges. My initial contact from the University of Utah “consultant” in the Office of Equal Opportunity and Affirmative Action requested only a meeting to discuss an “important and confidential OEO/AA matter.” The initial emails he and I exchanged can be summarized as follows:
Consultant: We need to meet to discuss something.
Me: I’m out of state, so can we talk on the phone? And what’s this regarding?
Consultant: There’s been a sex discrimination/harassment complaint against you, and we need to meet.
Me: I’ll call today. Meanwhile, please email me the complaint.
Consultant: We typically don’t provide the written notice of complaint without meeting.
Me: I have no intention of returning to Utah for the foreseeable future. Please email the complaint.
Consultant: I won’t provide the complaint, but I’ll send you a summary.
* * *
I later came to realize that I was fortunate to receive as much information in writing as I did. According to Unwanted Advances, most faculty, staff, and students accused under Title IX are simply instructed to show up for a meeting, alone or with a “support person,” to discuss an “urgent matter.” They are explicitly instructed not to bring an attorney. Right away, the accused is cautioned about confidentiality: s/he is warned not to discuss the pending complaint with colleagues or students. The accused will only learn of the accusations against them when s/he meets face-to-face with the local Title IX enforcement squad.
As is probably apparent, the strategy is to blindside the accused. According to Kipnis the scenario is often as follows: When the accused arrives at the meeting she’s agreed to attend, she’ll be baffled about what’s going on. She’ll likely be greeted by multiple university attorneys and administrators. At that point, allegations are parceled out one by one in order to give the accused ample opportunity to incriminate herself (the accused is not cautioned about the admissibility, in a subsequent disciplinary hearing, of anything she might say to her Title IX inquisitors).
I was perplexed when I received the summary of my university’s complaint against me. Most of it concerned conversations I’d had with colleagues in the late 1990s and early 2000s, soon after I’d joined the faculty at the University of Utah. Here is a representative example: “You have recounted stories to female faculty members related to your proposal to your wife, and how you proposed at a strip club during a lap dance.”
This is true, except for the part about the lap dance. It’s the only possible story I can tell about my marriage proposal. (Indeed, I didn’t have a different marriage proposal story to tell.) It was recollected to my three fellow junior colleagues, all of whom were women, off-campus over drinks and pizza at the Pie Pizzeria in Salt Lake City. Our conversations were often off-color, as anyone who’s ever had a drink with coworkers might understand. This incident, and several like it, were erroneously alleged to have taken place between 2004 and 2016 (in fact, they took place several years earlier). I don’t know how these dates were chosen, but it’s noteworthy that my nameless accuser—the accusers are always anonymous in Title IX proceedings—waited over ten years to initiate a complaint against me.
The allegations against me also contained nebulous accusations of gender discrimination. Here is the most specific example: “In an April 6, 2016 faculty meeting discussing the outcome of an external review report of a Department program, you yelled ‘I feel vindicated! This is exactly what I’ve been saying all along!’ You reacted this way because the director or the program [sic] is a woman. . . .” Here are the three important pieces of background necessary to understand this allegation:
A review committee in 2016 sharply criticized my academic department.
At the April 6, 2016, faculty meeting I acknowledged feeling vindicated by the review committee’s report.
My department head is a woman. (Question: if my department head had been a man, would I have been accused of misandry? In any event, I greatly doubt that my accuser knows whether I discriminate against women.)
The summary of allegations I received from my university’s Title IX enforcer instructed me to respond in writing within two calendar days, although I received no indication about how I was to respond. Well more than two days later, I informed him that I needed more time to consult my attorney about my response. At this point—the first time I mentioned that I’d lawyered up—his tone markedly softened, and I was told to take all the time I needed.
It was to my advantage that I was able to conclude my investigation without ever having an in-person meeting with my Title IX inquisitor. Indeed, I never even spoke with him on the phone after I received the written complaint. After I provided my written rebuttal of the charges, my Title IX investigator proceeded to interview twelve of my colleagues (my other two colleagues failed to respond, as did a number of graduate students). Four and a half months after I first heard from him, I received a written report that exonerated me of sexual harassment and gender discrimination. The costs to me—scores of hours of my time and $14,000 in attorney fees—were minor compared to many other victims of Title IX abuse. Faculty members have been forced out of their jobs; students have been expelled from school.
The report stood out in several ways. First, it was clear that the complaint had been instigated by a single faculty member in my department, someone who’s long harbored animus toward me and other colleagues. It’s for this reason I’d had virtually no interactions with her for over fifteen years, long after I’d recounted my strip club marriage proposal. But no matter: the inquisition inspired by the Dear Colleague letter had provided the means for my accuser to carry out an anonymous vendetta against a colleague based on conjecture and trumped-up evidence. It was irrelevant that the majority of the “assaults” occurred off-campus and well over a decade ago.
All of this should be troubling to anyone who works or attends classes on a college campus. What’s more, complaintants don’t even have to be affiliated with the university. The following appeared in a footnote to my Title IX report:
In early June, a writer for a magazine who interviewed Wolfinger called the Department to complain of inappropriate sexual comments which she alleged occurred during the interview. The OEO/AA attempted on several occasions to reach the writer to interview her and get information regarding specifics of her interactions with Wolfinger, however, she did not return the OEO/ AA’s attempts at contact and did not participate in the investigation process.
Which reporter? I’ve talked to hundreds of them in the course of my academic career. What had I said? I don’t have a clue, although potty mouth is a good bet (it often is with me). I don’t know the answers to these questions, and I never will. Indeed, I don’t know if I’d even talked to the journalist in question, or, for that matter, whether she’s actually a journalist. All I know is that someone contacted my department to complain about me, and that the university saw fit to introduce this evidence into official proceedings. It’s hard to imagine anything having a more chilling effect on scholarly research and teaching than the prospect that anyone can contact your university to complain about anything at any time.
Everything I’ve described is consistent with the Title IX cases described by Laura Kipnis, including her own experience of being investigated (she was targeted for writing an article). Respondents are routinely notified of the charges against them by nameless accusers only when they appear at hearings. They are denied protections we take for granted in criminal proceedings, such as representation by counsel or the Miranda warning against self-incrimination. Had my case actually involved a hearing, I would have discovered that I had no right to cross-examine anyone testifying against me.
Powerful forces keep the Title IX machinery humming. The 2011 Dear Colleague letter threatened colleges and universities with denial of federal funds if found out of compliance with its directives. To date, no school has lost its funding. But many have faced expensive compliance reviews, as well as public shaming: for years the DoE Office of Civil Rights has published a list of colleges and universities accused of mishandling Title IX cases. Therefore schools have a strong incentive to pursue every case brought to their attention, no matter how flimsy. This is how a regulatory regime designed to crack down on sexual assault managed to ensnare a faculty member for telling his colleagues about proposing to his wife at a strip club.
The outside pressures supporting the status quo are equally strong. Anyone questioning the current interpretation of Title IX risks being labeled an apologist for campus rape. For instance, influential blogger and activist Amy Siskind had this reaction to news that the DoE’s Office of Civil Rights might soon stop publishing its list of schools accused of Title IX improprieties:
Trump regime going to stop holding colleges accountable for their handling of campus sexual assault.
In defense of Siskind and others who’ve had similar reactions, they might not be totally clear about what they’re defending. Certainly no one is suggesting that campuses or courts go easy on rapists. Indeed, a big part of the problem has been transparency. With closed tribunals and respondents sworn to secrecy, there is little awareness of the havoc that’s been wrought by the 2011 Dear Colleague letter. When I first confronted the preposterous allegations made against me, I attributed it to a dysfunctional culture at my university. Only upon reading Kipnis’s work did I learn that my experiences had been typical. In turn, Kipnis had the same experience. Upon becoming the target of her own Title IX complaint, she ignored the injunction for confidentiality and published her experiences. After doing so she was contacted by scores of Title IX victims all around the country.
It’s her example that led me to chronicle my own experience with Title IX. Sunlight will eventually disinfect if enough people ignore the unconstitutional demands for secrecy and go public about their own experiences.
The costs of not reforming Title IX are high. I got off lightly, aside from my steep legal fees. Many others haven’t been so lucky. Much of Unwanted Advances describes the Title IX ordeal of Peter Ludlow, formerly at Northwestern University. Guilty of little more than lousy judgment, Ludlow resigned his tenured professorship amidst endless hearings, stratospheric legal expenses, and mounting pressure from his university. A male undergraduate student was kicked out of college for asking his girlfriend for oral sex. Another male student was disciplined by his university for kissing his sleeping boyfriend. This case ended up in federal court, where the presiding judge rebuked Brandeis College’s Title IX enforcers for being “essentially secret and inquisitorial.”
Indeed, as more travesties of justice inflicted by Title IX end up in court, there will be more pressure to reform it. There are also new grounds for hope at the federal level. Last month Secretary of Education Betsy DeVos named Adam Kissel as deputy assistant secretary for higher education programs. Kissel has assailed the OCR-directed move to the “preponderance of evidence” standard in campus sexual assault cases. Kissel is also a former employee of FIRE (Foundation for Individual Rights in Education), whose president, Robert Shibley, was an early critic of Title IX’s expansion to sexual violence offenses.
This appointment has been met with resistance on the grounds that reforming Title IX somehow enables sexual assault. For instance, Senator Patty Murray (D-WA) condemned the appointment of Adam Kissel on these grounds: “I am deeply troubled this hire is another concerning sign that President Trump plans to make it more difficult for survivors of campus sexual violence to get justice.” With all due respect, the Senator’s concerns are misguided. Justice for survivors of sexual assault comes from aggressive criminal prosecution, not campus tribunals.
If the 2011 Dear College letter was an attempt to “get serious” about campus sexual assault, the proliferation of trumped-up Title IX inquiries has had the opposite effect. A close friend of mine is a rape survivor. A college sophomore when she was assaulted, she was infuriated by the message of Unwanted Advances. Witch hunts against guys who kiss their sleeping boyfriends belittle real assaults, like the one she endured. No one deserves that.
Students, parents, and taxpayers should also be concerned, given how much money colleges and universities are devoting to Title IX enforcement. My inquisitor at the University of Utah interviewed almost all of my colleagues. Laura Kipnis reports that two attorneys were flown to Evanston, Illinois, where she teaches at Northwestern University, from Kansas City. The mind reels at what this must have cost Northwestern (fortunately for taxpayers, it’s a private school). Universities are also racking up huge costs in the form of settlements. Few people would dispute settlements paid to actual assault victims when colleges and universities are culpable, but consider payouts like the $825,000 the University of Colorado at Boulder made to a student because a faculty member there “smeared her reputation” in the course of a Title IX investigation (the faculty member, a tenured philosophy professor named David Barnett, was forced to resign.)
The other victim of Title IX abuse is the broader climate on college campuses. In this respect, the Dear Colleague letter engenders a environment where anything and everything is perceived as a micro-aggression. This is the climate in which Laura Kipnis faced a Title IX complaint simply for writing an essay about sex on campus (she created a “chilling environment” for reporting sexual harassment or assaults). It’s the very death of academic freedom if faculty can’t write about whatever they want. And this is only part and parcel of a wider devolution on college campuses, of “trigger warnings” and “safe spaces” that seems destined to result in more debacles like Evergreen State College. It’s worth quoting Kipnis at length here:
The reality is that the more colleges devote themselves to creating “safe spaces”—that new watchword—for students, the more dangerous those campuses become for professors. It’s astounding how aggressive students’ assertions of vulnerability have gotten in the past few years. Emotional discomfort is regarded as equivalent to material injury, and all injuries have to be remediated. Most academics I know—this includes feminists, progressives, minorities, and those who identify as gay or queer—now live in fear of some classroom incident spiraling into professional disaster.
I would add only that students and university staff members also face these perils.
A growing number of commentators have denounced the Dear Colleague expansion of Title IX. Terry Hartle, a senior vice president at the American Council on Education, called the civil rights office “a Court of Star Chamber, with arbitrary rulings, no rights for those under investigation and a secret process.” Twenty-eight Harvard Law School professors have written open letters decrying how Title IX enforcement at their university eliminated “the most basic elements of fairness and due process.” Even some Title IX officers themselves now feel that the Dear Colleague letter has resulted in “a license to subvert due process and to become the sex police.”
It is past time for American institutions of higher learning and the Department of Education to reform Title IX immediately.
Read more at: http://quillette.com/2017/08/24/survived-title-ix-star-chamber/