United Educators Warns Admins: Keep Up With Legal Requirements, But Don't Overreact
June 24, 2013
by Susan Kruth
Earlier this month, United Educators (UE) Senior Vice President and General Counsel for Claims Management Robb Jones wrote an insightful article emphasizing the importance of protecting due process and free speech rights while addressing the issue of discrimination on college campuses, particularly in light of the May 9 federal “blueprint” for sexual harassment policies. As an insurer of many institutions of higher education and a provider of risk management resources, UE is faced with the same dilemma universities are: risk liability for violating Title IX, or risk liability for violating the First Amendment.
Thankfully, Jones has advised higher education administrators to comply with Title IX as it has been interpreted in the past—but not to “jump on this new wave and overreact by discarding fair process or ignoring free speech.” He warns:
[R]ecent developments show activists' success in capturing the enforcement effort, or at least their ability to shape a compelling media message that drives the bureaucracy, silences those unable to match their fervor, and submerges competing interests. Imagine if environmental groups took responsibility for enforcing the pollution laws or Mothers Against Drunk Driving adjudicated all DUI cases. Mission-oriented activism, however legitimate as advocacy, cannot lead to fair resolutions in situations that are often intensely fact-sensitive. Yet as you look at the rhetoric and the demands, you see advocacy that ignores the complexity of the issues and paints everything in one shade with the broadest of brushes. What do the advocates want? They want campus punishment to replace what they see as an unsatisfactory criminal justice system. They want to change what they call a “campus rape culture.” And yes, they want money damages—lots of them.
Jones acknowledges the difficult path ahead for administrators and advises them to “[u]se knowledgeable consultants and the Title IX resources UE has created to keep your institution's head above water and avoid getting swamped.” Indeed, the new requirements the Departments of Education and Justice have imposed on the University of Montana are overwhelming. FIRE, too, is always here to help universities properly protect students from discrimination without infringing upon students’ rights to free speech and due process.
For more of Jones’ analysis, visit the United Educators website.