John McWhorter is right about the chilling effect of Title IX campus safetyism

If you care about free speech and academic freedom on campus, check out FIRE Advisory Council member John McWhorter’s story in The Atlantic this month, “Academics Are Really, Really Worried About Their Freedom.” John talks about a deluge of messages he’s received from professors who are terrified of facing discipline, or actually facing it, thanks to the rise of cancel culture. He writes:

This year, the Heterodox Academy conducted an internal member survey of 445 academics. . . more than half the respondents consider expressing views beyond a certain consensus in an academic setting quite dangerous to their career trajectory.

So no one should feign surprise or disbelief that academics write to me with great frequency to share their anxieties. In a three-week period early this summer, I counted some 150 of these messages. And what they reveal is a very rational culture of fear among those who dissent, even slightly, with the tenets of the woke left.

As a professor himself, John’s openness about this topic is a courageous use of his influence, and we at FIRE are lucky to have him as a consistent ally. We have seen this same fear for years. 

One of John’s correspondents specifically cited the fear that “that students could file spurious Title IX complaints” as a method of removing an undesirable voice from campus. As I have previously noted, broad readings of Title IX permitted it to function as a de facto national speech code, which made its recent reforms so urgent. But John’s correspondent highlights a further problem: the rise of cancel culture and a history of Title IX abuse can combine into a powerful engine of both outright censorship and of academically insidious self-censorship.

FIRE used to be almost alone trying to bring attention to the abuses of harassment law and codes that have been used to punish clearly protected speech going back long before we were even founded, in 1999. Before I started at FIRE in 2001, if you had told me that harassment laws were routinely abused to squelch speech, I would’ve assumed it was some kind of conservative propaganda. But I’ve lived it now for almost 20 years. 
 

This would be a scary proposition even if Title IX had been interpreted logically and consistently in the past. As we well know, that has not been the case.

I fielded phone calls from terrified professors who did not want to come forward all over the country. We’ve been lucky in the past 10 years to have additional important voices added to the criticism of the abusive interpretations of Title IX, including Laura Kipnis and her excellent book “Unwanted Advances: Sexual Paranoia Comes to Campus”; Emily Yoffe, who wrote this powerful series in The Atlantic; and the tireless K.C. Johnson, who has been sounding the alarm on campus due process since the Duke Lacrosse case.

Some of the most important voices on this issue are from other FIRE staff members. Senior Fellow Samantha Harris — a frequent collaborator with Johnson — has advocated for the rights of all participants in the Title IX process through her scholarship, her teaching, her public advocacy, and now, her private practice. Vice President of Policy Reform Azhar Majeed was writing about the risks of overbroad interpretations of Title IX as far back as 2009. And in 2016, FIRE’s Executive Director Robert Shibley wrote “Twisting Title IX,” which highlights how some administrators have treated Title IX as an exception to the constitutional protections of freedom of speech and due process. 

That same year, a Brooklyn College professor was told he would have to change his syllabus to remove the phrase “Class deportment, effort etc……. 10% (applied only to select students when appropriate)” — as a result of a secret Title IX hearing process about which he was not informed, let alone permitted to present a defense. When he pushed back, it became clear the “complainant” was the college’s director of diversity investigations, that no written complaint existed, and the underlying theory was that mentioning “effort” in the syllabus could be read as a “prelude to sexual harassment.” 

In 2018, 50 Harvard students said they filed Title IX complaints against then-Supreme Court nominee Brett Kavanaugh, who had taught a course on the Supreme Court at the law school for about a decade. The complaining students argued that after sexual assault allegations were made against Kavanaugh during his confirmation process, his presence on campus would constitute sex discrimination. 

As the petition’s organizer explained it, she hoped the use of Title IX in this way would show students that the Title IX process gives them “a right to our feeling of being safe.” To read Title IX in this way expands it beyond all recognition, because in the current culture of safetyism, anything that creates emotional discomfort is likely to be cast as posing a threat to safety. And a good deal of important scholarship is likely to make someone emotionally uncomfortable. 

This would be a scary proposition even if Title IX had been interpreted logically and consistently in the past. As we well know, that has not been the case. In June, I responded to the ACLU’s lawsuit to prevent Title IX reform, and included a non-exhaustive list of some of the abuses we have seen at FIRE. It’s worth repeating here: 

• At Northwestern University, a professor was accused of violating the school’s policies on sexual harassment and retaliation and investigated twice: once for writing an essay critical of Title IX investigations, and once for writing a book about the first investigation. Hear from the professor here.
• At the University of Denver, a professor was found guilty of sexual harassment for teaching sexual topics in a graduate course about the consequences of the drug war.
• At Louisiana State University, a professor was fired for sexual harassment that amounted to the occasional use of profanity and references to sex in preparing her education graduate students for their intended careers as teachers.
• Student journalists at the University of Alaska Fairbanks were subjected to a 10-month investigation for sexual harassment over an April Fools’ Day article about plans to build a new campus building shaped like a vagina. Hear from the editor here.
• At the University of Oregon, a female student was hit with five conduct charges, including harassment, for yelling “I hit it first” at a couple passing by who she did not know. (The joke suggested she had sex with one of them.)
• At Indiana University-Purdue University Indianapolis, a student was found guilty of racial harassment for literally just reading the book “Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan” in public. Not reading out loud, just in a public place. Hear from him (and the book’s author) here.
• At Rutgers University, a professor was found guilty of racial harassment for Facebook posts complaining about gentrification and saying that he “resigned” from the white race.
• Babson College students were charged with harassment for driving around Wellesley College and chanting Trump campaign slogans after the 2016 election.
• A law professor at Howard University was found guilty of sexual harassment for including a hypothetical question about Brazilian waxes on a tort law quiz.
• At Tufts University, a conservative student newspaper was found guilty of harassment for having “targeted” black and Muslim students for “embarrassment” by publishing offensive satire.
• At Doane University in Nebraska, a faculty librarian was suspended and investigated for racial harassment for displaying the university’s own photos of a 1926 party where students wore blackface. The photos were part of a larger historical display.
• A Clemson University student faced harassment charges for joking that an administrator was “smoking crack” during a disagreement over his group’s choice not to participate in a student organization fair.
• A professor at East Georgia College was told to resign or face termination for sexual harassment for criticizing the college’s new sexual harassment policy.
• The University of New Hampshire evicted a student for harassment for posting fliers joking that freshmen women could lose the “Freshman 15” by taking the stairs.
• At Syracuse University, a student was charged with harassment for a satirical blog about law school in the style of The Onion. Hear from the student here.
• At Brandeis University, a professor teaching a Latin American Politics course was found guilty of racial harassment for criticizing an anti-Hispanic slur during a class.
• At Lewis & Clark College, two friends and football teammates (one black and one white) were found guilty of racial harassment and placed on probation after two racially themed jokes were overheard by another student outside a party.
• At Occidental College, a student radio show host was fired and found guilty of sexual harassment (in that order) for his on-air satire.
• At the University of Colorado at Boulder, a professor teaching “Deviance in U.S. Society” had her course cancelled, and was pressured to retire, after a lecture involving a skit where volunteer teaching assistants portrayed prostitutes.

In his Atlantic piece, John notes that many of the academics writing to him are “living in constant fear for their career.” That fear also plays into how many of these situations FIRE can tell you about, which has been a source of constant frustration since I started at FIRE nearly two decades ago. 

Most people accused of Title IX violations, even ones that seem absurd to anyone who knows the facts, prefer not to go public and forever associate their name with a Title IX violation in search engines. That silence permits the mechanisms of Title IX enforcement to operate in secrecy, which in turn avoids the public scrutiny that could check many unjust outcomes. The machinery, emboldened by success, views its mandate ever more broadly. While most of the cases FIRE can talk about are the tip of an iceberg, the one listed above represent a disproportionately large iceberg under the surface. 

Abuses of Title IX undermine campus life in two ways. First, and by far most importantly, invoking the Title IX process outside of the very real, and very harmful, sex discrimination it was intended to ameliorate leads to skepticism about Title IX complaints in general, to the detriment of the actual victims of sex discrimination and assault. 

Second, as John’s correspondents have noted, the misuse of Title IX to police and punish non-discriminatory speech frustrates scholarship across the board, especially in areas that are likely to require a discussion of gender disparities. Reduced scholarship in these areas could easily lead to a slower path to equity, or even a regression to an earlier time when no one talked about gender issues. 

The first concern is urgent; the second, insidious. As reform efforts continue, we must foreground the first concern while never losing sight of the second. 

Sept. 13, 2020 Update: The original version of this post neglected to mention the important work of K.C. Johnson. That has been corrected, with our apologies!