Los Angeles lawyer Ken White notes that a professor is being “investigated for writing about being investigated for writing about being investigated.” This Title IX investigation has apparently been going on since last May, making it longer than some other investigations that courts have ruled unconstitutional due to their speech-chilling nature.
Previously, Northwestern University investigated Professor Laura Kipnis after she wrote an essay for The Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe,” which hypersensitive students claimed offended them and constituted sexual harassment in violation of Title IX, the federal statute against sex discrimination in educational institutions. After Kipnis defended herself against the harassment charges on Twitter, students then accused her of “retaliation” in violation of Title IX. After an outcry from free speech advocates, charges were shelved months later.
These charges against Kipnis over an off-campus essay were made possible by the Obama administration. It changed the Education Department’s interpretation of Title IX to require colleges to investigate even off-campus student or faculty conduct alleged to constitute sexual harassment or assault. The Obama administration’s position was at odds with federal court rulings saying that Title IX does not apply off campus, such as Roe v. St. Louis University (2014).
One of Kipnis’s accusers then filed a defamation suit against Kipnis for her book “Unwanted Advances: Sexual Paranoia Comes to Campus,” which cast aspersions on a student’s sexual harassment claims against a former professor.
In May 2016, several Northwestern students—including the one who is suing Kipnis—then filed a Title IX complaint against the professor over her book. The University then launched an investigation, which has yet to reach a conclusion.
A lengthy investigation of a person’s speech can violate the First Amendment through its chilling effect, even if the person is never found guilty. For example, a federal appeals court found that an eight month-long civil rights investigation of citizens for their speech opposing a minority housing project protected by the Fair Housing Act was a clear violation of First Amendment rights, in White v. Lee, 227 F.3d 1214 (9th Cir. 2000).
However, Northwestern University is a private university, and thus is not bound by the First Amendment. So Kipnis would have to show that federal pressure or policies caused the investigation of her before she could sue under the First Amendment.
These endless complaints against Kipnis are facilitated by other actions taken by the Obama administration, which left the misimpression that even unreasonable and false allegations of harassment and retaliation are protected by Title IX. According to the courts, sexual harassment allegations made to campus officials are not protected against retaliation if they are either (a) factually false, or (b) based on an unreasonable misinterpretation of what constitutes sexual harassment. [See Vasconcelos v. Meese, 907 F.2d 11 (9th Cir. 1990) (false allegations not protected); Clark County School District v. Breeden, 532 U.S. 268 (2001) (unreasonable allegation not protected, such as complaint about fleeting exposure to sexual material that no reasonable person could have viewed as “severe” or “pervasive”)].
But in its publicly available letters of findings in Title IX investigations, the Education Department’s Office for Civil Rights fails to acknowledge that false allegations are not protected, and in 2016, one OCR staff attorney took the position that “reasonableness” should not be used in assessing harassment allegations. In 2015, an OCR regional office found that a student who made false allegations was entitled to Title IX “remedies” against a college. In its investigation of Michigan State University, it required college officials to offer “remedies” such as academic adjustments to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students. The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough—even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser. Such “interim remedies” against accused students who are never found guilty raise serious due-process issues. [See, e.g., Tyree v. Evans, 728 A.2d 101 (D.C. 1999) (due process required opportunity to cross-examine accuser before imposition of one-year no-contact order); Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) (overly broad no-contact order violated First Amendment)].
Harvard Law Professor Jeannie Suk Gerson provides disturbing details about the ongoing investigation of Kipnis at The New Yorker:
“Kipnis … was surprised when Northwestern once again launched a formal Title IX investigation of her writing. … [I]nvestigators presented her with a spreadsheet laying out dozens of quotations from her book, along with at least eighty written questions, such as ‘What do you mean by this statement?,’ ‘What is the source/are the sources for this information?,’ and ‘How do you respond to the allegation that this detail is not necessary to your argument and that its inclusion is evidence of retaliatory intent on your part?’ Kipnis chose not to answer any questions, following the standard advice of counsel defending the court case.
“She did submit a statement saying that ‘these complaints seem like an attempt to bend the campus judicial system to punish someone whose work involves questioning the campus judicial system, just as bringing Title IX complaints over my first Chronicle essay attempted to do two years ago.’ In other words, the process was the punishment. Possible evidence of retaliatory purpose, she learned, included statements in the book that aggressively staked out her refusal to keep quiet. … Her prior Title IX investigation, she writes, ‘has made me a little mad and possibly a little dangerous. ... I mean, having been hauled up on complaints once, what do I have to lose? “Confidentiality”? “Conduct befitting a professor”? Kiss my ass. In other words, thank you to my accusers: unwitting collaborators, accidental muses.’ Also presented as possible evidence was her Facebook post quoting a book review—‘Kipnis doesn’t seem like the sort of enemy you’d want to attract, let alone help create’—on which Kipnis had commented, ‘I love that.’”
The Foundation for Individual Rights in Education says that in addition to trampling on academic freedom, the investigation of Kipnis also seems to contradict the logic of a Bush-era 2003 Education Department guidance document that was never withdrawn by the Obama administration.
As Reason’s Robby Soave notes:
“It should be obvious that the text of Title IX does not empower university officials to investigate tenured professors for criticizing Title IX, nor was the law intended to weaponize students' grievances. Kipnis’s ongoing ordeal is a testament to the pressing need for the Education Department to rein in the Obama-era guidance that spawned this madness, and a reminder that Secretary Betsy DeVos is wholly justified in doing just that.”
I earlier explained why Education Secretary Betsy DeVos was correct to criticize Obama-era Title IX interpretations at this link, since those interpretations undermine free speech and student and faculty rights on campus.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.
Editor's Note: This piece was originally published by the Competitive Enterprise Institute.