We Have to Talk About This
A few years ago, Butler went through a very destructive period when it sued a student for libel as the result of a blog he kept in which he expressed certain opinions, anonymously, about administrators in the University. In my view, the very fact of this lawsuit was a threat to academic freedom, and I wrote about it in my essay, “Butler University v. John Doe: A New Challenge to Academic Freedom,” which was published in the Journal of Academic Freedom (http://www.aaup.org/sites/default/files/files/JAF/2011%20JAF/Watts.pdf).
Now, I fear, we may be going through a similarly destructive period.
This time, the threat to academic freedom comes not from an alleged libel against an administrator, but from the University’s interpretation of Title IX. I’ll come back to Title IX toward the end of this piece, but let me say at the outset that I support the aim of Title IX, which is to guarantee the civil rights of everyone, regardless of gender, in educational institutions supported by federal funding. Title IX has, in my view, been used appropriately to expand women’s access to sports programs in colleges and universities, and it is now being used appropriately to address the scourge of sexual violence against women on University campuses.
I am worried, however, that the law is being mis-applied in order to deny the academic freedom of members of our community. Ironically, some of those losing their academic freedom are women who have worked to support and promote the aims of Title IX.
The case that concerns me at Butler University is shrouded in secrecy, and that is part of what concerns me here. Secrecy is a veil under which injustice flourishes. Because this case concerns public discourse and public issues, it deserves public discussion. Unfortunately, however, the people who have been accused through this process were apparently forbidden to speak about it to anyone on campus. A lot of people seem to know something about the case, but very few people seem to know the whole story.
Here is what I have been able to glean so far. I would be grateful to anyone who can correct what I have gotten wrong, or fill in the gaps that are missing from my story:
- In mid-April of 2015, the Information Commons, a joint enterprise of the University’s library and its Information Technology areas, sponsored an exhibition entitled “Diversity in Every Color.” Those participating in the exhibit could win a $20 gift card for their exhibit.
- A faculty member put on her personal Facebook page a posting that was critical of the idea of diversity that informed the exhibit or a poster that was made public as part of this exhibit.
- Many other faculty members and some former students added to this Facebook posting, and questioned in some way the idea of diversity behind the exhibit.
- A complaint was made through the Human Resources Office of the University, and handled under its Title IX authority.
- Five faculty members were put through a lengthy examination, and many others were tangentially involved in the investigation.
- The investigation now seems to have reached its conclusion, but one of the five faculty members is appealing a judgment made against her.
- The five main targets of the investigations—and perhaps others as well—were told that they could not talk to anyone other than their spouse about this investigation for fear of creating the impression that they were retaliating against their accuser(s).
In several important ways, this case reminds me of a case that received national attention earlier this year. Laura Kipnis, a professor at Northwestern University, published an essay entitled “Sexual Paranoia Strikes Academe” in the Chronicle of Higher Education. As the title suggests, the essay was provocative, but well within the range of academic discourse. (And, in the spirit of academic discourse, let me state that I disagree with some of the claims Kipnis made in her essay.) As the result of her publication of this essay, she was subjected to a strange and ill-defined investigation in which she was accused of violating the provisions of Title IX. She subsequently wrote an essay about this experience, also published in the Chronicle, entitled “My Title IX Inquisition.”
While Kipnis was cleared of the nebulous charges brought against her, her story also makes it clear that the investigation itself was a kind of punishment, and a deterrent to the principles of academic freedom that animate a university. I fear that we have a similar situation at Butler. As nearly as I can tell, those accused of Title IX violations at Butler have been subjected to a similarly Kafkaesque experience.
Title IX itself is rather simple and straightforward; the main text of the law, passed in 1972, states that, “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.” The problem, though, is that, over the years, a body of interpretations of this law has developed that go well beyond this simple text. And, in some cases, these interpretations threaten the very enterprise of the University.
I hope that there will be more discussion of Title IX and its ramifications at my University and elsewhere. For now, though, let me articulate some principles that I think need to be honored alongside our efforts to realize the aims of Title IX:
- To paraphrase an important Supreme Court opinion, and the underlying principle of the American Civil Liberties Union, the proper response to obnoxious speech is more speech—not prohibitions, punishment, libel lawsuits, or other means of suppressing speech.
- It is the business of faculty members and students to express opinions. No one at a University should ever be punished—or threatened with punishment—for expressing an opinion.
- Extended processes that interrogate faculty members about their expression of opinions create a climate of fear and suppress the exchange of ideas at University.
- This climate of fear is compounded when the accused are told that they cannot talk to others about the accusations made against them.
- The University as an institution should not take an interest in what faculty members and others post on Facebook and other public areas unless these postings 1) threaten someone, or 2) engage in some illegal activity. And in those cases, the investigation and prosecution of offenses on Facebook should probably be carried out by law enforcement agencies, not universities.
- There needs to be a strong academic presence at the beginning of Title IX investigations. Investigations in response to a faculty member or student’s expression of an opinion should be stopped before they start.
It may be that I have gotten some things wrong in this posting, or have blundered in some other way. If so, I hope someone will alert me to my mistakes, and I will correct them. My hope is that this posting will mark the beginning of a public discussion, and not the end of it. I insist, however, on my right and the right of others to express their opinions about the terms under which we work and exchange ideas. That’s what a university is all about.