EDITORIAL: Proposed Title IX Rule Endangers All Cornell Students

On June 23, the U.S. Department of Education (DoE) issued a proposed rule to dramatically revise the current regulations addressing sexual harassment and sexual assault.  This is the first of a two-part series to discuss the proposal and explain its potential impact on Cornell and its students. This part will discuss the threat to freedom of expression and the second part will discuss the lack of due process.

Background on Title IX

In 1972, following the launch of the Equal Rights Amendment ratification attempt, Congress enacted Title IX of the Higher Education Amendments Act of 1972.  This simple law prohibits the denial of educational opportunities on the basis of sex, with exemptions for fraternities, sororities and similar single-sex groups.  To the surprise of many people, the major use of Title IX was to provide more athletic opportunities for women, but it was also used to make campus groups co-ed.  As the AAUP wrote in 2016:

Beginning in the 1980s, in response to student and faculty feminist pressure, application of Title IX was expanded to cover not only discrimination in employment and educational facilities but also a wide range of unacceptable forms of sexual conduct. *** [DoE]’s recent interpretations conflate speech and conduct—particularly with regard to defining hostile environment—and give little, if any, attention to rights of free speech, academic freedom, and due process.

So, DoE mandated each college have a grievance procedure to handle sexual harassment and sexual assault complaints.  Instead of adopting official rules, the Department of Education sent out a “Dear Colleague Letter” describing what a process for handling such complaints should look like.  Accordingly, Cornell removed sexual harassment and sexual assault from the Campus Code and Campus Judicial system and set up Policy 6.4, which provided the accused with very few rights.  “Sexual harassment” was so poorly defined as to cover almost any interaction between a man and a woman that left someone’s feelings hurt. (“actions constitute sexual and sex/gender-based harassment depends on a number of factors around the context of the conduct, including the relationship between the parties.”)

Free Speech and Cornell

Historically, other than the First Amendment to the U.S. Constitution (which limits the DoE when writing rules), there were no federal laws regulating freedom of speech on campus. And when schools tried to control speech, the courts were quick to step in and protect student rights.   Generally, the courts recognize that an effective college campus must have a wide range of debate and therefore provide a wider degree of speech protection for higher education than in K-12 schools.  The First Amendment protects not only words, but conduct such as burning the flag in protest and wearing a t-shirt that says “F___ The Draft.”

Cornell also has a long history of protecting the free expression and due speech rights of its community members.  Fifty years ago, the Cornell University Senate, which had student, faculty and employee members, established a campus code of conduct and a campus judicial system with a high degree of due process.  These codes were equally applicable to students, faculty and staff when accused of misconduct.  The process embodied the fairness and due process rights expected in the courts downtown.  They also contained explicit protections of free expression.

Although Cornell recently adopted “free expression” as one of its six core values, and also adopted a policy upholding academic freedom and free expression, the latter university policy does not apply if “a reasonable person in the setting would find it to be abusive or humiliating toward a specific individual or specific individuals, or it persists despite the reasonable objection of the specific individual or individuals targeted by the speech.”  Of course, this is much less protection than what the current Trump administration Title IX rule provides.  Worse yet, the Biden Administration’s proposed rule would not even require that the targeted individuals made reasonable objections at the time.

Around 2007, activists proposed that Cornell adopt a general  “speech code” to allow people to be punished for “hate speech.”  After extensive opposition in the University Assembly, Cornell did not implement this proposal, but if the “hate speech” targeted someone based on sex, it was handled under Policy 6.4.

This led to more Title IX complaints filed against Cornell with DoE than against any other major university.  There were also many lawsuits filed by individual students and faculty who claimed to have been mistreated by the Policy 6.4 process.  Other schools had similar problems, and the Trump Administration responded by rescinding the Dear Colleague Letter and adopting legally binding rules that better protected student rights after holding a notice and comment rulemaking.  The rules took effect in August 2020.  The Biden administration is now seeking to overturn those reforms.

What Cornell Has At Risk

Students, faculty or staff can sue Cornell in federal court to collect damages and other remedies if they can prove that Cornell denied them an educational opportunity on the basis of sex.  Also, people can file complaints with DoE’s Office of Civil Rights, if they believe that Cornell has failed to follow the DoE regulations or has generally allowed a “hostile environment” to exist on its campus. (The hostile environment is a vague combination of all of the conduct of all of the people on campus, whether they adhere to Cornell’s policies or not.)  If DoE finds a Title IX violation, it can end Cornell’s sizable federal funding.  Finally, many courts have held that Cornell’s printed policies create a binding contract with its students, faculty and staff, promising fair treatment, free expression and academic freedom, so if Cornell improperly cuts corners in delivering on its promised protections, a harmed party can sue it for breach of contract in either state or federal court.

Why Students Are At Risk

In general, Cornell students are responsible for knowing the conduct rules that apply  to them and can be punished if they are found responsible for a violation.  Most rules are written as a criminal code where if the accused’s conduct matches specific elements, then a decision-maker can declare the student guilty. However, Policy 6.4 is too vague to tell what is outlawed and whether it protects free speech.  The proposed rule includes interim remedies which allow Cornell to issue a no contact order, or to suspend a student from his classes, or to prevent the student from graduating, until a Title IX case can be resolved.

Also, if Title IX clamps down so hard on normal campus life with an outsized fear of being hauled before a kangaroo court, the value of a Cornell education may be diminished.  Particularly, if faculty members grow fearful of unwarranted Title IX complaints from students, they will be less likely to spend time mentoring students and instead keep their guard up. 

Supreme Court Tried to Draw a Line Between Title IX and Free Expression

There is a clash between Title IX’s goal of giving everyone access to Cornell’s programs without regard to sex and the freedom of speech guaranteed by the First Amendment.  The current regulations solve this by adopting the test announced by the Supreme Court in Davis v. Monroe County Board of Ed.The parents of a fifth grade girl sued her public school under Title IX for failure to stop a boy from harassing her.  The court held (5 to 4) the school was liable because the harassment occurred on school grounds during school hours.  (In contrast, the proposed rule is not limited to on-campus conduct.)  The Davis court drew a line between allowed speech and punishable harassment:

Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.

The Obama Administration then reinterpreted this test as “severe, pervasive or objectively offensive” with only one of the three needed to violate Title IX.  Instead of reading Title IX to step in when a school learned that student-on-student harassment became severe, the DoE demanded each school create a specialized judicial system that deprived the accused of most rights.  The DoE would evaluate each system based on its end results rather than upon the fairness of handling each individual complaint.  This meant that unless a Title IX administrator could show that a lot of sexual harassers were being punished, the school would be guilty of willful indifference to the hostile environment.  Needless to say, Cornell’s Title IX staff was caught between ensuring procedural fairness and achieving successful convictions. This resulted in very high turnover.  This creates a problem similar to the small town that funds its police by a speed trap on the highway – the staff’s ability to enforce the law fairly becomes less important than the total number of tickets and fines paid.

Justice Kennedy’s dissent in Davis questioned if the Federal Government can rewrite or dictate school conduct processes:

The Federal Government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation’s schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools.

Kennedy also recognized how this runs into college students’ free speech rights:

A university’s power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment. The difficulties associated with speech codes simply underscore the limited nature of a university’s control over student behavior that may be viewed as sexual harassment.”

It is worth noting that today’s Supreme Court is considered to be more conservative than the Court adjudicating Davis.

The majority in Davis swept the First Amendment problems under the rug, and the proposed rule does not address them.  Instead, it backs away from the Davis test to ask colleges to examine each “hostile environment” case based on all facts and the totality of the circumstances.  Rather than create a safe harbor of speech that cannot be punished, the proposed rule would cast a very wide net over anything that someone with hurt feelings could claim creates a hostile environment.  By moving from specific interactions between individuals to subjective feelings generated from the totality of the circumstances, every student is subject to attack, and can be roped into a kangaroo court Title IX proceeding.  There is no safe harbor free from attack other than to never interact with any other students on-campus, off-campus, or online.

Long standing First Amendment law does not allow regulation of speech based upon its content.  Nor does it allow regulation of speech based upon hurt feelings.  Think of the military academies or the Virginia Military Institute where all students are put through a tough process designed to hurt their feelings.  Because that process is applied without regard to sex, the courts have found it to be lawful.  At Cornell, students are taught to question everything with thoughtful rigor.  No topic, including sexual stereotypes or gender identity, is off limits to such thoughtful debate.  The DoE does not, as Justice Kennedy argued, have the authority to shut down critical thinking and debate at an institution of higher education  by holding the university responsible for whether student-on-student discussions create a “hostile environment.”

The Upcoming Battle

The debate started by the new proposed rule will get very ugly.  In the past, the proposed rule’s unfair requirements were defended on the grounds that “rapists should not be allowed to go unpunished.”  However, most of the proposed rule deals with a hostile environment of sexual harassment rather than specific acts of sexual assault.  Also, there is a big difference between punishing someone merely accused of misconduct and someone found to have engaged in misconduct.  Finally, it is important to note that the proposed rule moves beyond the conflicts between men and women to include the vast uncharted issues of gender identity.  

Perhaps a set of federal guidelines for minimum standards for fairness and protected speech might be welcomed at colleges that struggle to implement Title IX.  However, the proposed rule sets maximum limits on how much fairness can be provided to the accused. The unclear and unfair proposed rule will have a chilling effect on speech.

Section 106.71(b)(1) of the current Trump administration rule states that “The exercise of rights protected under the First Amendment” cannot be considered to be prohibited retaliation for filing a complaint.  Cornell has investigated building a website in defense of a professor accused of a Title IX violation as possible retaliation against a complainant, and the proposed Biden rule would remove this First Amendment protection, claiming the statement is “redundant.”  

To the extent that state or local governments have enacted legislation to provide more protection for students’ rights (including free speech rights) the proposed rule would use federal power to preempt such legislation.

In sum, the Biden administration’s proposed rule would void any policies or protections that colleges offer students to defend their free expression rights and subject students accused of misconduct to highly unfair procedures.  The proposed rule strikes at the heart of the educational process and puts every college student at serious risk of unfair treatment.