They continue to compromise free speech and due process.
For years, universities have denied basic procedural protections to students accused of sexual misconduct. Despite the seriousness of such allegations, schools routinely condemn students as responsible without so much as a hearing or the opportunity to confront their accusers. This was supposed to change when the Department of Education’s new Title IX regulations took effect on August 14.
But the more things change in higher education, the more they stay the same. It’s no secret that schools fought the new regulations tooth and nail. Now they are outdoing each other to circumvent them.
Universities resisted the regulations despite the fact that they actually deregulate higher education in important ways, by limiting universities’ liability exposure and narrowing the scope of students’ private lives that universities must police.
But universities clearly want to police their students’ sex lives and are now finding creative new ways to do so.
This is a continuation of universities’ zealous expansion of sexual-harassment policies to infringe upon constitutionally protected speech and academic freedom in ways that could never be enforced in a court of law. Civil anti-discrimination laws already extend to behavior that is severe, pervasive, and objectively offensive, but schools want to push beyond this to accommodate everyone’s subjective feelings of offense. Once sacrosanct, academic freedom is now routinely cast aside in the name of student “comfort” and “safety.” Professors can now teach controversial subject material only at great personal risk. At public universities, where the First Amendment applies, numerous Title IX policies have been ruled unconstitutional by federal courts. No such constitutional protections apply at private institutions.
Things were supposed to change in August, when the new Title IX regulations took effect, with robust free speech and due process protections. Now it appears that many campuses are fighting to ensure these protections remain illusory. It’s not that institutions aren’t changing their policies. Rather, they are doing so to comply superficially while claiming increased authority to subject students and faculty to processes that provide few, if any, of the protections that the regulations require.
Take the University of Illinois at Urbana–Champaign, for example. With nearly 50,000 students, it is one of the largest American universities. Last month, UIUC adopted a new policy that claims that the new Title IX regulations establish “a floor — not a ceiling — to the varied forms of misconduct that can be prohibited at a university.” UIUC “has decided to go beyond this floor to promote a safe and welcoming culture and climate.”
Schools bemoaned the new regulations’ complexity and the extra costs, as well as the confusion they would supposedly cause. So what is UIUC’s antidote? UIUC now wants to maintain two separate definitions of sexual harassment: “Title IX sexual harassment,” tracking Supreme Court law in Davis v. Monroe County Board of Education, and another, special and broader category of campus speech and conduct that UIUC will now police as “sexual harassment.”
A student accused of “Title IX sexual misconduct” will get the new procedures specified in the regulations. These include, importantly, the right to a live hearing with cross-examination. Not so if you’re accused of “non-Title IX sexual misconduct.” Then you’re out of luck — no hearing for you.
This also raises the possibility that students will be subject to the whim of bureaucrats, who will switch the new Title IX regulations on and off depending on the situation. (Spoiler alert: They will usually turn them off.)
And how are schools such as UIUC going to decide which policy to adjudicate various behaviors under, since the broader category of campus sexual misconduct will always encompass Title IX sexual misconduct? No potential source of confusion there, right?
Take the new policy of Arizona State University. Like Illinois, ASU establishes two separate procedures for adjudicating sexual-misconduct tracks, one with robust protections and one without. Why not use both? says the university.
ASU’s policy defines Title IX sexual harassment in accordance with the regulations, but maintains other policies defining “sexual harassment” more expansively. And ASU makes clear that “if the facts or occurrences forming the basis of a formal complaint of Title IX sexual harassment would also constitute a violation of other university policies,” respondents may be subject to a second process that could “proceed concurrently.”
In one proceeding, students will receive all the due-process protections required by the regulations, including the right to access evidence, the right to a hearing, the right to cross-examination, and the right to be presumed innocent. In the parallel proceeding, however, students will not. They cannot even challenge the findings of an investigator until everything has already been decided and sanctions already doled out.
Dating back to 2011, universities bemoaned Title IX mandates as a heavy-handed federal imposition. This was always dishonest. Universities clearly wanted to extend their control over campus sex life and promote new norms for sex on campus. Universities’ zealous activism has now found new expression in the voluntary creation of multi-track, ever more byzantine enforcement regimes, even as they continue to bemoan federal mandates. It really is Opposite World on college campuses today.
The Department of Education carefully created a system that offers procedural protections commensurate with the seriousness of sexual misconduct accusations. Unfortunately, universities’ commitment to procedural unfairness never was about government policy with regard to Title IX, a common excuse during the years when Title IX guidance itself undercut due process. The inescapable conclusion is that this is about the university’s perceived need to redefine sexual agency, sexual mores, and consent, which will apply only on campus and nowhere else in American life. To do so, they are claiming ever more power over the minutiae of students’ private lives.