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When it comes to protecting the on-campus community from sexual discrimination, federal policy outlined in Title IX has been key, but with Donald Trump—a man found guilty of sexual abuse—on his way to the presidency, all bets are off. At a webinar Nov. 13, AFT staff and members considered the path forward, discouraged by possible changes but finding hope in the fact that, for now, colleges and universities can craft their own policies around sex-based abuse and discrimination, regardless of who is in the White House.
Where we started
Title IX is a familiar tool used by students, faculty, staff and college administrators to ensure that no one is pushed out of higher education because of their gender or sex. In recent times its provisions regarding sex-based harassment have been most relevant: Because sex-based harassment can create a hostile environment that prevents some students from getting the education they deserve and workers—like faculty—the careers of their choice, the current law requires that colleges and universities that receive federal funding investigate sexual harassment, take steps to stop it and eliminate the environment that allowed it to occur.
But Title IX and its regulations only establish a floor to policing sex-based misconduct at higher education institutions; colleges and universities can go beyond Title IX’s regulations to ensure a safe and inclusive environment for their communities. Depending on the executive branch’s regulations, some of the most salient variables include whether and to what degree LGBTQIA+ people are protected, who is designated a mandatory reporter and whether live hearings with cross-examination are conducted as part of campus investigations.
On the surface these standards seem straightforward, but there are sensitivities that quickly emerge when applied to real-life cases. Mandatory reporting, for example, puts faculty members in a difficult position if a student shares an experience of sexual harassment or assault. What if the student does not want to report? Do you betray the student’s trust and report anyway? Students may be reluctant to confide in mentors if they fear a cascade of legal proceedings.
Live hearings are another tricky element: Survivors may be retraumatized if they must face alleged perpetrators and cross-examination. Rather than helping, required live hearings could be a deterrent to reporting incidents.
Recent changes
These policies were recently thrown into question with the approval of changes from the Biden administration in August, which are all on hold due to lawsuits supported by 26 Republican-led states. Biden’s changes would have clarified protections for LGBTQIA+ people—in fact, LGBTQIA+ advocates thought they were about to get stronger anti-discrimination policies. The changes also altered Title IX procedures by requiring all faculty members to be mandatory reporters and removing a requirement for live hearings.
Other elements of the new rules extended Title IX to off-campus and international settings and extended protections against discrimination due to pregnancy or parenting.
After describing these shifts, Channing Cooper, deputy director of the AFT’s legal department, explained how the states’ lawsuits have delayed them and said that with Trump coming into office, most people assume they are now off the table entirely. But that does not mean policies to protect people from sexual harassment are dead.
Moving forward
The webinar, presented by the AFT and the American Association of University Professors, considered what options faculty have regarding Title IX and related policy moving forward. “Now more than ever it’s important to be proactive in assessing what our values are,” said Risa Lieberwitz, president of the Cornell University chapter of AAUP and a member of AAUP’s Committee A on Academic Freedom and Tenure. Unions can push for policy at the university level and craft what works best for their communities.
For example, contract language can require that faculty members are involved in developing Title IX policy on campus. Contracts can govern the requirements around live hearings, mandate that there is more than one investigator in Title IX cases and negotiate training for mandatory reporters. They can guarantee the right to an adviser for faculty members who are accused of sexual harassment, require due process and determine legal issues such as burden of proof—whether it’s the more rigorous “clear and convincing proof” or “proof by a preponderance of the evidence.”
The AAUP has four goals regarding Title IX, said Lieberwitz:
- Address gender inequality.
- Protect faculty academic freedom by distinguishing between protected speech and unprotected sexual harassment.
- Protect due process.
- Integrate shared governance in the development of Title IX policy.
Drilling down to real-life situations, some examples included faculty misgendering students: At what point is that a violation? The first time? The fifth? If it’s defiant? And what about those conversations with a student you’ve been mentoring: When she starts to tell a story about how she was harassed on her way to class, how do you interrupt that conversation to say you are a mandatory reporter?
As faculty and staff get ready for a new era under Trump, Title IX is just one many unknowns. One can speculate—for example, Cooper predicts that gender identity will no longer be included in what can be used to determine sex discrimination. But she also says that “college are free to adopt more rigorous protections.”
Lieberwitz encouraged webinar participants to get involved in shaping how their individual campuses handle policy: Help develop policies defining sexual harassment. Make sure academic freedom is accounted for. “Title IX is only a floor when it comes to addressing sex discrimination on campus,” she said.
[Virginia Myers]