Back in February, Northwestern professor Laura Kipnis wrote an essay in the Chronicle of Higher Education critical of (to borrow from her title) “sexual paranoia” on college campuses. One of the essay’s main targets was what Kipnis describes as a lawsuit filed by a student against a professor charging that he had sexually assaulted her in the context of a dating relationship. Recently, Kipnis wrote a second essay (subscription required) detailing what happened to her in the aftermath of the first. Students reacted negatively to her first essay, and in addition to protesting its content, two graduate students also filed an internal complaint alleging that the essay was retaliation against the student who had filed the lawsuit and would deter other students from reporting sexual harassment against professors in the future. The focus of Kipnis’s second essay was the obscure and lengthy process that the university used to investigate the complaint against her. Apparently, university officials were reluctant to reveal the charges against her, hired an outside law firm to conduct the investigation and adjudicate the complaint, buried information about the process in a labyrinth of web links, and took longer than the OCR-prescribed timeframe of 60 days to resolve the matter. In fact, at the time of Kipnis’s second essay, the university had not yet reached a resolution of the case; though it has since found in Kipnis’s favor and cleared her of all charges of wrongdoing.
Kipnis’s essay has generated concern (see, e.g.) about the threat Title IX poses to professors’ academic freedom. My view is that it is unfair to indict Title IX based on what happened to Kipnis. I think her criticism of the university’s procedure for investigating the complaint against her is a reasonable one. Importantly, however, none of the ways in which the university obscured, outsourced, and prolonged the investigation process are requirements of Title IX. Northwestern could have dealt with the complaint against Kipnis in a more transparent, evenhanded, and efficient way without any risk of violating Title IX. Thus, there is no basis for predicting that universities motivated by Title IX compliance obligations would utilize similar procedures to evaluate charges against a professor stemming from an exercise of academic freedom.
Secondly, while I don’t have access to the university’s reasoning for dismissing the complaint against Kipnis, this outcome is entirely consistent with the law of retaliation more generally, and illustrates why it would be difficult for a student to ever prevail in a retaliation claim based on professor’s written publication. Retaliation generally consists of adverse action targeting a person who engaged in protected conduct as punishment for that conduct. For words alone (i.e., without an associated tangible act) to constitute an adverse action against the person engaged in protected conduct, it would have to rise to the level of retaliatory harassment. Harassment requires the conduct that is severe or pervasive, and a single written essay, especially one that comments on a matter of public concern and public record, is neither. Moreover, the retaliation charges against Kipnis contained a mismatch between the person who had engaged in protected conduct (the student who filed the lawsuit against the professor) and the person(s) adversely affected by Kipnis’s essay (i.e., the entire student body whose motivation to challenge harassment was arguably “chilled.”). For these reasons, there is little risk that professors would ever actually be found liable for retaliation based solely on the fact of a publication expressing academic freedom, and there is little grounds on which to generalize Title IX as a threat to that freedom.