Professor Sine Anahita: Current approach to enforcing Title IX invites ‘trouble’

In a recent online article for Academe, the magazine of the American Association of University Professors, Professor Sine Anahita pens a thoughtful critique of some of the ways overzealousness in recent interpretations of Title IX has created serious problems on campus.

In her piece, titled “Trouble with Title IX,” Anahita explains tensions caused by a blanket policy maintained by the University of Alaska Fairbanks, where she serves as an associate professor of sociology, requiring all faculty and staff to forward all allegations of sexual misconduct reported to them to the campus administration. Violations of this policy could result in the employee’s termination.

Anahita argues that institutions that designate employees, including faculty and staff, as mandatory reporters of sexual assault allegations inadvertently infringe on academic freedom and erode trust between faculty and students. Her argument, which should be read in full, is that a blanket policy like the one adopted at her university: 1) violates the student’s privacy rights; 2) forces students to self-censor; 3) violates students’ confidentiality; 4) infantilizes students by imposing rules that typically only apply to reporting abuse of minors; 5) prevents complainants from deciding for themselves what course of action is in their best interest; and 6) may violate faculty ethics norms, to boot.

While FIRE does not fully agree with Anahita’s analysis, we do agree with her larger point that requiring faculty in particular to report allegations of sexual misconduct to campus administrators is a more complicated issue than it might seem at first glance. For example, Anahita writes:

To prevent being required to report students to campus authorities, I now minimize the possibility that anyone will make personal disclosures to me. In my sexualities class, I moved the section on sexual assault to the very end of the course to avoid discussion. I am hoping that if I close the door to conversations about sexual assault, students will not tell me about their experiences. Like Laura Kipnis, I believe that the mandatory reporting rule is part of a nationwide sex panic, with Title IX administrators running amok.

In other words, Anahita feels compelled to avoid certain materials that she would ordinarily teach in order to steer clear of the mandatory reporting provision. The implications for academic freedom are profound and troubling.

FIRE’s agreement with Anahita may come as a surprise to some, given our criticism of some of the Title IX complaints she has filed in the past. It may also be especially surprising given that I am the author of a piece for The Hill entitled “The case for mandatory reporting of campus sexual assault.” But FIRE believes that past disagreements should never preclude recognizing common ground where it presents itself. And my article was about policies addressing when campus administrators should notify law enforcement professionals of potentially dangerous situations, not whether faculty or other employees should be required to report allegations to campus administrators. This distinction is important.

Policies that require faculty members to report accounts they receive from their students —  often with the expectation of privacy — to university administrators carry different implications than policies that would require administrators with knowledge of potential sexual violence to report what they know to law enforcement. Requiring faculty members to notify campus administrators may deter at least some potential complainants from talking with trusted faculty, as Anahita explains in her piece, but it doesn’t do much to ensure that the complainant or others in the campus community are any safer. Schools, after all, cannot take rapists off the streets. The second kind of “mandatory reporting” — campus administrators reporting to law enforcement — on the other hand, ensures that trained professionals in law enforcement are made aware of potentially dangerous situations and allows them to at least offer their assistance and resources to complainants. It does not require complainants to cooperate with law enforcement investigations, nor does it condition the receipt of any appropriate campus accommodations or assistance on doing so.

Aside from tackling thorny questions about when it is appropriate for a faculty member to set aside confidentiality requests and report allegations of sexual assault to administrators, Anahita’s piece illustrates other important points, too.

One particularly compelling point is that the current methods of enforcing Title IX have encouraged overzealous investigations, like Northwestern University’s lengthy, disturbing investigation of Professor Laura Kipnis. Reiterating her concern that other issues like academic freedom and confidentiality have been cast aside under current methods of enforcing Title IX, Anahita asks:

How did we get here? How was the text of Title IX, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” transformed into a command for campus Title IX administrators to hunt down potential victims and to destroy the confidential nature of the student-professor relationship?

Those are important questions to ask.

None of this is to say that enforcement of Title IX is unimportant. To the contrary, it is vitally important to ensure that known instances of sexual harassment and sexual violence are addressed effectively.

It is unfortunate, however, that when any of the current enforcement practices are called into question because of their civil liberties or academic freedom implications, critics often allege that those questioning the current practices are trying to roll back Title IX and prevent its effective enforcement. I sincerely doubt that Anahita wishes to see Title IX go unenforced. Speaking for FIRE, I will reaffirm that it is our sincerest hope that Title IX will be enforced effectively and without infringement on other equally important rights. Given the well-documented academic freedom, free speech, and due process problems that have been caused by the current approach to Title IX enforcement, we aren’t shy about our position that reevaluating current methods of enforcing Title IX is necessary.

A final issue that Anahita raises in her essay is that the mandatory reporting provision at the University of Alaska Fairbanks was implemented without faculty input. One of FIRE’s core criticisms of how the federal government has enforced Title IX since 2011 is that the agency has issued mandates without first seeking the input of all of the stakeholders, through the formal notice-and-comment process required under the Administrative Procedure Act (APA). FIRE is in fact sponsoring a lawsuit challenging the 2011 “Dear Colleague” letter’s evidentiary standard mandate, because the Department of Education did not follow the APA’s requirements in issuing it.

FIRE believes that addressing sexual misconduct on campus needs to be approached carefully, using policies crafted with the input of all stakeholders, in order to be accepted and effective. Anahita’s essay provides another example of how trouble is created when concepts like shared governance and stakeholder consultation are set aside.

Hopefully, Anahita’s article is just one more sign of a growing consensus that we can do a better job of enforcing Title IX without sacrificing other crucial rights. I also hope it signals the end of the unfortunate regularity of advocates framing this complex issue in terms of either being “for” or “against” Title IX.