Ouch! Brazilian wax test question nets Howard University professor a 504-day Title IX investigation, sanctions

• Case is part of a larger pattern of colleges and universities punishing constitutionally protected expression under the guise of addressing sexual harassment.

WASHINGTON, July 6, 2017 — A test question about hot wax has landed one Howard University professor in hot water with Title IX investigators.

On May 4, law professor Reginald Robinson was deemed responsible for sexual harassment after two students complained about a test question involving a Brazilian wax and an upset client. After a 504-day investigation, administrators determined that Robinson would be required to undergo mandatory sensitivity training, prior administrative review of future test questions, and classroom observation. Robinson also received a stern warning that any further “violations” of the university’s Title IX policies may result in his termination.

The Foundation for Individual Rights in Education wrote to Howard on June 16 demanding that Robinson’s sanctions be removed. Howard did not respond by FIRE’s June 30 deadline.

“Robinson’s test question clearly does not constitute sexual harassment,” said Susan Kruth, FIRE’s senior program officer for legal and public advocacy. “Howard’s overreaction to a simple hypothetical question is a threat to academic freedom and a professor’s ability to effectively teach students.”

During a September 2015 class, a female student challenged a test question’s premise that a person could sleep through a Brazilian wax. After a complaint to administrators by two students and a 16-month investigation, Robinson was informed that one of the students allegedly believed the question’s premise somehow required her to reveal to the class whether she’d had a Brazilian wax. This dubious assertion, coupled with the use of the word “genitals” in the law school test question, contributed to then-Deputy Title IX Coordinator Candi Smiley’s determination that Robinson is guilty of sexual harassment.

Although Howard is a private institution and thus not bound by the First Amendment, the university explicitly promises its students and faculty members free speech and academic freedom rights. These sanctions run counter to Howard’s own academic freedom policy, which states that faculty members are “entitled to freedom in the classroom in discussing their subjects.”

“My case should worry every faculty member at Howard University, and perhaps elsewhere, who teaches in substantive areas like law, medicine, history, and literature. Why? None of these academic areas can be taught without evaluating and discussing contextual facts, especially unsavory and emotionally charged ones,” said Robinson. “I also can’t prepare my students adequately for legal practice if I can’t teach them new developments and require them to read unedited, unfiltered cases.”

Howard’s actions are part of a nationwide trend of restricting free speech under the guise of addressing sexual harassment. For example, in 2013, the federal government wrote in a letter to the University of Montana that it must define sexual harassment as “any unwelcome conduct of a sexual nature” — including verbal conduct, or speech — and called the letter “a blueprint for colleges and universities throughout the country.” As FIRE predicted, this “twisting” of Title IX has led to the widespread suppression of protected speech.

In 2014, Harvard Law School professor Jeannie Suk Gersen wrote that law faculty were increasingly reluctant to teach rape law for fear of offending or upsetting their students. And just last year, professor Teresa Buchanan filed a federal lawsuit against Louisiana State University after it fired her for protected speech both in and out of the classroom. LSU found that Buchanan had violated a sexual harassment policy mirroring the “blueprint” definition. That lawsuit is still ongoing.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

CONTACT:

Daniel Burnett, Communications Manager, FIRE: 215-717-3473; media@thefire.org

Wayne Frederick, President, Howard University: 202-806-6100; hupresident@howard.edu