An unintended consequence of Title IX


Lack of clarity in the anti-sex discrimination statue is being used to censor student media





The intent of Title IX of the Education Amendments of 1972 was pure: end sex discrimination in academia. But an unintended and unexpected outcome of broad interpretation of the law may be a chilling effect on student press.

Passed more than 40 years ago, Title IX is a federal civil rights law that prohibits discrimination on the basis of sex — which can include sexual harassment or sexual violence, such as rape, sexual assault, battery and coercion — in education programs and activities. All public and private schools receiving any federal funding must comply with Title IX.

Before Title IX, women faced discrimination in academics, admissions, athletics and hiring. Though the effects of Title IX have increased gender equality in higher education, an unforeseen consequence of the law, as it is currently being interpreted, may be the restriction of college media.

In an effort to rid college campuses of sex discrimination in compliance with Title IX — and avoid the potential loss of funding that comes with noncompliance — some college administrators have panicked, and have taken the law too far, some First Amendment advocates say.

Just last year, the Daily Bull, a student comedy publication at Michigan Technological University, was slapped with disciplinary measures after satirizing issues of sexual harassment and assault.

spring2016reportcover

The publication’s editor, Rico Bastian, wrote an article, “Sexually Harassed Man Pretty Okay with Situation,” that describes a male student receiving “unwelcomed sexual contact from members of the opposite sex, all of which he later looked back on with feelings of complacency.”

The satirical article — published alongside a satirical list of “Signs that she wants the D,” including reasons like she “only screams a little” — was an attempt to comically address how many people don’t take male sexual assault seriously, managing editor Mike Jarasz told the Student Press Law Center. Jarasz also said it may be “considered more acceptable” for an attractive person to sexually harass someone, as the article ends with the male student saying he felt violated after receiving a sexual look from a “kinda ugly” woman.

Still, MTU Vice President for Student Affairs Les Cook did not find the article humorous.

Cook sent out a campus-wide email denouncing the article for “advocating criminal activity on campus.”

The university’s office of academic and community conduct placed the Daily Bull on probation for two years — which meant if the publication put out another problematic article, it could be removed as a student publication altogether — and issued staffers to take a cultural sensitivity course. The Daily Bull’s adviser stepped down, and the publication issued a retraction and apology.

And although student governments are legally not permitted to withdraw funding in retaliation for content, student legislators at MTU voted to freeze the Daily Bull’s funding until its staffers attended a Title IX training course. The staff underwent a three-hour training, covering both Title IX and cultural competency, but “didn’t really learn much,” Bastian said.

Cook also told the Daily Mining Gazette that the university was legally required by Title IX statutes to act in cases of sexual discrimination or harassment.

“(The Constitution) doesn’t supersede [Title IX],” he said. “Title IX is a federal compliance policy. Those policies supersede anything else.”

That interpretation of the Constitution, however, is inherently wrong, according to the Foundation for Individual Rights in Education.

“Let’s be clear about one thing: The Constitution of the United States, including the First Amendment, is ‘the supreme Law of the Land,’ and does in fact supersede any federal regulation that violates it,” FIRE said in a statement following the discipline.

Mark Wilcox, a spokesman for MTU, said conflicting regulatory mandates regarding Title IX affect the university’s compliance efforts.

FIRE President Greg Lukianoff has repeatedly blamed censor-happy administrators on the DOE’s Office for Civil Rights — the department that enforces federal civil rights laws — which he

said has significantly confused administrators and students on Title IX compliance.

“For the overwhelming majority of my career what I’ve been fighting is administration overreach,” Lukianoff said in an interview with Reason.com.

ADMINISTRATIVE OVERREACH

In April, several free speech, academic freedom and education groups argued that interpreting Title IX to include speech that some students find offensive could not only threaten students’ speech rights, but also undermine their education and efforts to promote equality on campus in a letter to OCR.

The letter — authored by the SPLC, FIRE, the National Coalition Against Censorship and the American Association of University Professors — argues that the office’s definition of harassment, set forth in “Dear Colleague” guidance letters to universities, poses profound threats to free expression.

While the letter was written in response to a situation at the University of Mary Washington in Virginia, where members of a campus group called Feminists United filed several complaints alleging that online harassment of female students over social media violates Title IX, it urged the department to provide more guidance in general.

“We take the allegations of discrimination at UMW very seriously, and we urge OCR to adopt an approach that will target unlawful conduct without casting a net so wide that it scoops up innocent students and constitutionally protected speech,” the letter read.

NCAC Executive Director Joan Bertin said that since people who post on Yik Yak — the social-networking app targeted at Mary Washington — are spreading news and opinion, much like student journalists, any guidance related to online communication apps issued by OCR could ultimately affect student journalists.

“Student speech and peer-to-peer activity is of much interest to OCR,” Bertin said. “They are plainly prepared to issue citations or to start investigations if they hear things that they don’t think universities are responding to appropriately.”

She said if one student ”who is really pissed off about a gender-based article published in the student newspaper” files a complaint, the department could begin an investigation and “set the stage” against student journalists.

It could only be a matter of time, Bertin said, before Title IX requires administrators to regulate college media, and some officials are already practicing this form of censorship.

She said university administrators are highly risk-averse, so if the choice is between being the object of a Title IX investigation or disciplining a student newspaper, she doesn’t think there is any question of which option administrators will choose.

“There is a very well-founded concern that college administrators are overreaching into student media,” Bertin said. “They are acting preemptively, and are very aggressively policing speech with sexual content to avoid being on OCR’s hit list.”

The OCR maintains that its efforts to combat sexual harassment and discrimination in schools is met with equal respect for the First Amendment.

“OCR has made it clear that the laws and regulations it enforces protect students from prohibited discrimination and are not intended to restrict the exercise of any expressive activities or speech protected under the U.S. Constitution,” an OCR spokesperson said in an email. “When schools work to prevent and redress discrimination, they must respect the free speech rights of students, faculty, and other speakers.”

CONFLICTING GUIDANCE

Under Title IX, no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

While short, the statute has been given a broad scope through U.S. Supreme Court decisions and DOE guidance to cover sexual harassment and sexual violence. Though schools must respond to and remedy all sexual harassment, they can only impose discipline for harassment if it creates a “hostile environment” — when it is so “severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit” — and failure to do so puts schools at risk of losing federal funding.

Since its implementation, vital definitions for compliance with Title IX have expanded drastically, despite rulings by the U.S. Supreme Court that have drawn distinctions between constitutionally protected offensive speech versus unlawful harassment.

Though sexual harassment is not mentioned in the Title IX legislation itself, the Supreme Court ruled in the 1992 court case Franklin v. Gwinnett County Public Schools that monetary damages could be awarded to individual victims of sexual harassment under Title IX.

In separate cases in 1998 and 1999, the Supreme Court made clear that Title IX requires schools to take action to prevent and stop the harassment of students by faculty and staff, as well as other students. The decisions in Davis v. Monroe County Board of Education and Gebser v. Lago Vista Independent School District established liability of the school, which occurs when the school knows about on- campus harassment that is creating a hostile environment and responds with “deliberate indifference.”

But some First Amendment experts say this narrow definition has been absent from guidance given to college administrators through recent pronouncements by OCR. For example, a “Dear Colleague” letter by the department from 2010 defined “sexual harassment prohibited by Title IX” to extend to “making sexual comments, jokes or gestures; writing graffiti or displaying or distributing sexually explicit draws, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Websites of a sexual nature.”

Directed by this broad definition, rather than the one given in Davis, what is considered a Title IX violation can be unclear — which could lead college administrators to unnecessarily restrict what student journalists publish, experts said.

AAUP recently published a report concluding that OCR’s broadened description of sexual harassment and heightened scrutiny of speech that includes sexual references of any kind has resulted in “a frenzy of cases in which administrators’ apparent fears of being targeted by OCR have overridden faculty academic freedom and student free speech rights.”

In one recent episode, the University of Alaska-Fairbanks newspaper was the subject of a year-long university investigation — ultimately resulting in no punitive action — after a university employee filed a sexual harassment complaint after being offended by a joke about genitalia in an April Fool’s Day humor edition.

College Media Association President Kelley Callaway said while Title IX once was used to ensure women had the same opportunities as men, she has seen its scope expand to include “almost anything that may offend someone.”

“I think we’re living in a world where if anything could possibly offend, there is this idea to eliminate it,” Callaway said. “That is surely not the best environment for student journalists.”

She said the vagueness of harassment definitions in “Dear Colleague” letters creates a lack of understanding that pushes college administrators to err on the side of caution when evaluating what is punishable under Title IX.

“The fear that [“Dear Colleague” letters] put colleges under can cause it to be used in ways that could stifle various forms of free expression,” Callaway said.

But Brett Sokolow, executive director of the Association of Title IX Administrators, said OCR is not to blame for the confusion among college administrators about how and when to enforce Title IX.

Though the OCR could be more clear on its distinction between sexual harassment and hostile environment, he said, schools still have to remedy all harassment, whether they can impose discipline or not.

Sokolow said some college administrators misinterpret OCR guidance, or misapply it as the result of malfeasance, but the lack of clarity “is not the culprit.” He said coherence is available for administrators willing to seek it out.

If colleges or universities are violating anyone’s free speech rights, Sokolow said that’s “on them.” He said it is an administrator’s job to know when something is in violation of Title IX, and whether the school should impose discipline.

“If [an administrator] doesn’t know, he or she isn’t doing their job,” Sokolow said. Still, Callaway said this confusion could cause student journalists to self-censor in an effort to avoid being disciplined through Title IX by administrators.

“I think student journalists have a responsibility to serve their community, and if they are avoiding reporting on certain issues because of potential Title IX violations, they are not serving their community,” Callaway said. “To not talk about sexual assault on campus, that isn’t serving anyone.”

But at Central Michigan University,that is exactly what student journalists are being told.

Sydney Smith, managing editor of Central Michigan Life, said while attempting to publish the locations where sexual assault has occurred on campus, she was blocked several times by administrators and campus police.

Smith said she thought it was vital to the safety of students on campus to know where sexual assault was most likely to occur, but was unable to obtain this information. She said she has attempted for months get this information through the Clery Act — which requires all colleges receiving federal funding to keep and disclose information about crime on campus and its efforts to improve it — but was unsuccessful. Smith tried several times to utilize the Freedom of Information Act — which allows the full or partial disclosure of previously unreleased government documents — but administrators denied her requests.

“Each time my requests were denied for the exact same reasons: invasion of privacy for those named in the report — even though I asked that the names be redacted — in violation of Title IX,” she said. “[CMU administrators] said that even though I wanted no names, someone could still ascertain and connect the dots to the person [through the locations] in the report.”

She said the university police told her that CMU would not allow the releasing of the locations of sexual assault under Title IX, and that publishing those locations may “re-traumatize the victim.”

“Leaving out information, especially regarding sexual assault on campus, does a tremendous disservice to the campus community,” Smith said. “As a woman, I feel it is my right to know where sexual assaults have occurred. What if there is a pattern?”

Smith said publishing this information is crucial to the community because readers should know where sexual assaults have occurred because there could be clear indications of problem areas on campus.

She said Title IX has a place, but universities need to follow the law more clearly when it comes to journalists.

“I was told that obtaining police reports of assault was a ‘gray area’ of the law and Title IX required the university to be less transparent,” Smith said. “I highly doubt that is what lawmakers intended.”

Steve Smith, a spokesperson for CMU, said redacting a name does not make it impossible to identify the survivor of sexual assault based on the location of the crime. He said location information, such as a dorm room, might lead to the identification of a victim, and would violate the student’s privacy.

“Moreover, incident descriptions of an alleged sexual assault also may identify potential survivors and witnesses,” he said. “Imagine the massive chilling effect this would have on the reporting of rapes and other forms of sexual assault.”

‘A RECIPE FOR CENSORSHIP’

Despite a newspaper’s role to disseminate vital information to its readers, some administrators are treating student

publications as an arm of the university by demanding compliance with Title IX and dictating what student journalists report on, First Amendment lawyers say.

SPLC Executive Director Frank LoMonte said Title IX was built for severe, pervasive harassment directed at specific individuals that makes them unable to continue their education, and no one will ever be able to show that a newspaper article came close to reaching that point.

Instead, he said, requiring student newspapers to comply with Title IX restricts free speech on campus and prevents student journalists from reporting key information regarding sexual assault that occurs on campus.

“I think, whether accidentally or on purpose, a growing number of institutions are treating the campus publication like an extension of the college itself and claiming that a news story will breach the confidentiality of Title IX,” LoMonte said. “That just makes no sense.”

A newspaper, just by definition, he said, cannot be harassment because it is “something you voluntarily pick up and can voluntarily put down.”

He said there are constitutional boundaries that administrators can’t cross, and guidance by OCR has created confusion in the minds of administrators about where their authority begins and ends.

This confusion, some say, creates a welcoming environment for censorship.

Will Creeley, vice president of legal and public advocacy for FIRE, said there is an incredible chilling effect of overly broad, impermissibly vague interpretations of sexual harassment on free student press.

“Any speech that has to do with sex or gender that rubs someone the wrong way — anything someone, somewhere doesn’t want to hear could be considered sexual harassment under OCR’s definition,” he said.

He said the threat to student media posed by unclear Title IX compliance requirements is perhaps as great as the threat to any campus speech.

“Student journalists are tasked with asking tough questions of those in power, like the student government or even administrators,” Creeley said. “People in power do not like being asked how they are exercising that power.”

He said the OCR has opened the door for extremely broad restrictions on student speech, and it is “only a matter of time before some administrator decides to wield them.” He said unclear guidance from OCR and what he sees as the oversensitivity of today’s college students creates a “recipe for censorship.”

Students and administrators alike, Creeley said, will censor student publications in order to avoid a Title IX investigation, if that becomes the norm.

“Censorship is a great friend of those who want to avoid conflict,” he said.Want more stories like this? The Student Press Law Center is a legal and educational nonprofit defending the rights of student journalists. Sign up for our free weekly newsletter to receive a notification on Fridays about the week’s new articles.

Fill out my online form.


censorship, magazine, recent-news, reports, satire, satirical, spring-2016, Title IX