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Proposed Changes to Sexual Harassment Regulations

Yesterday, the AAUP submitted comments in response to a proposal by the US Department of Education to amend Title IX regulations concerning sexual harassment. The AAUP responded, in particular, to a question posed by the department about “whether there are any unique circumstances that apply to processes involving employees.” The AAUP’s comments are directed to the unique circumstance of faculty in higher education.

The proposed regulations ultimately fail to specify the importance of academic freedom and shared governance for Title IX proceedings. Moreover, we object to proposed regulations that unduly narrow the scope of protections against sexual harassment.

The AAUP urges the education department to adopt regulations that do the following:

  • Define sexual harassment broadly enough to prohibit conduct that creates a hostile environment
  • Protect freedom of speech and, in particular, academic freedom of faculty in teaching and research
  • Protect due process in investigations and hearings
  • Endorse shared governance to bring faculty expertise and institutional knowledge into developing and implementing policies related to Title IX

In 2016, the AAUP published The History, Uses, and Abuses of Title IX. This report urges the education department and universities to address and prevent sexual harassment in ways that also fully protect academic freedom and due process, and in ways that enhance shared governance by faculty and students.

While some of the department's proposed regulatory changes technically comport with recommendations made in the AAUP’s 2016 report, narrow agreement on a legal rule or standard is not indicative of agreement about what counts as inequality and how to redress it. The AAUP is committed to abolishing systemic discrimination in higher education. As our 2016 report notes, while colleges, universities, and the education department focus on the sexual dimensions of sex discrimination, the plain language of Title IX is meant to protect those on campus more broadly from unequal access to educational resources, wage disparities, and inequitable representation across the university system. To these ends, we again caution against the extraction of gender equity from more comprehensive assessments of the bases for inequality—including race, class, sexuality, disability, and other dimensions of social difference—both on and off campus.

The AAUP encourages the education department, as well as colleges and universities, to take note of the recommendations in our 2016 Title IX report and to work to improve the working and learning conditions of all campus constituents. Such improvements should include fully committing to interdisciplinary learning on campus by adequately funding gender, feminist, and sexuality studies, as well as allied disciplines, as part of an effort to teach about all forms of inequality, including inequalities based on race, gender identity, disability, class, geographic location, and sexual orientation.

To read a more detailed summary of our comments to the Department of Education, go here.

Risa L. Lieberwitz
AAUP General Counsel