Decoupling Determinations of Sexual Misconduct from Title IX: UIUC #MeToo Reform

Posted in: Civil Rights

A University of Illinois at Urbana-Champaign committee just issued a report on Faculty Sexual Misconduct calling for a sweeping overhaul of the University’s approach to sexual harassment. Most notably, from my perspective, the committee proposes that the University use its code of conduct to decouple determinations of sexual misconduct from Title IX and expand to new categories such as gender and/or sexual hostility; unwanted sexual attention, and sexual coercion. In addition, the report suggests that third-party victims can be considered victims of ambient misconduct, either directed at another individual or not directed at any single individual, if they can show harm. The recommendations also include a new progressive sanctioning system and open the door for restorative justice processes. I hope to explore this package of reforms over a set of several posts. But to begin, in this post, I want to explain how this potentially transformative reform document came into being and second, how the enhanced scope of sexual misconduct might operate.

A year ago, revelations regarding a law professor who engaged in widespread sexual misconduct rocked the University of Illinois. A FOIA request brought to light an investigator’s determination that the professor did not violate Title IX, because his behavior did not rise to the level of “severe or pervasive.” The determination resulted in only minor sanctions for violations of the spirit of the campus code of conduct. After additional allegations of wrongdoing were unearthed, law students along with others agitated for his resignation and for broader campus reform. While this professor voluntarily took a year of unpaid leave, offered an apology to the College of Law community, and promised to engage in rehabilitative efforts, he proved to be the tip of the iceberg. Recent ProPublica stories suggest that the University had systemic defects in handling harassment cases and a climate that allowed profoundly troubling behavior to continue. The cases seem to reflect a fundamental lack of accountability mechanisms, the difficulties in imposing significant sanctions, and the willingness to use nondisclosure agreements at the expense of transparency. Meanwhile, aggressive confidentiality rules left participants and witnesses feeling that they had to choose between keeping silent to third parties or violating rules.

Unfortunately, the University of Illinois is hardly alone among higher education institutions facing claims of systemic failure on these issues, with schools as varied as Michigan State and Dartmouth facing similar crises. Neither seems to be embracing sweeping institutional reform. The eroded trust may make it even less likely that students, staff, and faculty would feel comfortable coming forward with claims. These problems could be compounded by expected Title IX reforms which would further narrow interpretation of what constitutes a cognizable offense.

Though I’m a skeptic by nature, UIUC’s proposed reforms related to Faculty Sexual Misconduct give me some reason for optimism. (By way of disclosure, I did not serve or advise the Committee on Faculty Sexual Misconduct.) The 100+ page committee report offers a package of sweeping reforms, unlike any I’ve seen at any American university, though I’d welcome in the comments examples of others. In this blog post, I’d like to focus on how the report approaches the concept of sexual misconduct.

Rather than simply replicate Title IX’s prohibitions, the report goes far beyond them. Under the current rules, UIUC bans quid pro quo sexual harassment and hostile environment sexual harassment. Hostile environment sexual harassment is as defined under Illinois’ existing Sexual Misconduct Policy as “unwelcome sexual, sex-based, or gender-based conduct . . . that is either sufficiently severe or pervasive and objectively offensive and unreasonably interferes with, denies, or limits a person’s ability to participate in or benefit from educational and/or employment opportunities, assessments, or status at the University.” The committee determined that other forms of “unwelcome sexual, sex-based, or gender based conduct” needed to be outlawed as well. In doing so, it referenced a wealth of empirical evidence that concluded the current legal requirements were not sufficient to address on-going harms or prevent their occurrence. In other words, a large swath of the existing “lawful but awful” behavior permitted under Title IX would become unlawful under the campus Sexual Misconduct Policy. The committee justified this expansion both because of the behavior’s inherent objectionability and effects on victims and third parties, but also because its premise that a climate intolerant of all forms of sexual misconduct makes the more egregious forms less likely.

The report defines the first new category, “gender based or sexual hostility,” as “objectively offensive treatment of another person or group, through words or conduct, with hostility, objectification, exclusion, or as having inferior status based on sex, gender (including gender identity or gender expression), or sexual orientation.” While such behavior could already be sanctionable under Title IX if it was severe or pervasive, this category eliminates any severity threshold. Examples include derogatory comments about an individual’s capacity based on that individual’s gender or about an entire sex, gender, or sexual orientation. So, for instance, comments such as “Women aren’t suited to be engineers” or “You wouldn’t be a good attorney because you’re too passive for a man” or “Trans women aren’t women” made in isolation would not meet the sexual harassment threshold but could satisfy the gender based or sexual hostility category. Of course, one would need more context for a determination, but in isolation, they categorically could not have met the old standard, whereas now they might.

The second new category, “unwanted sexual attention,” includes “sexual attention, advances, or comments that a person should know are unwanted or which continue to occur or persist after the recipient has communicate a desire that the behavior stop.” Comments could be direct or indirect. For instance, a faculty who repeatedly muses on the benefits of an extramarital affair or his preferences for certain sexual positions might be subject to sanction under this category. Even if a student had not voiced a desire that the comments stop, such comments could be prohibited based on social context and cues. Less clear to me is whether this category includes attention that is not sexual in nature but is directed at a single individual or group of individuals, such as “hugging, squeezing, pinching, putting an arm around someone’s shoulder and/or rubbing someone’s back when a reasonable person would know that such behavior is unwanted or after the recipient has communicated that physical contact is not desired.” In other words, would, using the parlance of our time, someone like Joe Biden be covered if it his touching was not motivated by sexual interest even if such touching is entirely or mostly directed at members of one sex?

The third new category, “sexual coercion” refers to “the use of force, violence, threats, or other wrongful conduct to compel or attempt to compel another to engage in unwanted sexual activity of any kind.” Rather than limiting potential sanctions to quid pro quo harassment in which coercion is limited to educational and/or employment opportunities at the University, this category outlaws a broader set of coercive activities. Here, I think the pressing question relates to how “wrongful” and “compel” are determined. One can easily understand the heartland examples such as “sleep with me or I’ll report your family member to ICE for lacking documentation paperwork,” but what are the outer edges? For instance, would intimate deceptions and frauds that are otherwise legally permissible, but material to the decision to engage in sexual activity count as wrongful conduct to compel?

I’d like to conclude here by noting that I hope to unpack these three categories a bit more in future posts as well as flag additional issues for further discussion. First, will the existence of these new categories create an incentive for decision-makers to characterize facts as falling within these less egregious categories to avoid legal risks when they might properly define them as falling under the more rigorous definitions under Title IX? Second, and somewhat related, is there a concern that the promotion of progressive discipline could lead decision-makers to provide similarly low-range punishments across categories leading to a form of moral flattening across events. While all of the misconduct detailed in the report is problematic, it is not all the same in terms of consequences on victims or need for sanction. Third, how do these expansive new prohibitions intersect with professors’ rights to academic freedom? While I’ll have to leave these questions to a future post, I’m heartened by the ability to do so. I think these recommendations might be well positioned to serve as a model for other universities but need to dig into the details before concluding.