The controversies regarding Title IX have now reached the New School. [1] Our president, David Van Zandt has stated this week that the New School will conduct a review of its policies and procedures, and that the “input from our students, faculty, staff, and academic leadership will be an important part of creating policy revisions following this review.” Since I have had some experience with our policies, as well as the controversies surrounding them, I would like to address these issues in writing. Undoubtedly, many others will do so as well: I hope that maximum and unfettered participation will be encouraged across the university.

As I see it, there are two dimensions of the problem and they should be separated. First, as it is clear now, problems of harassment, as well as apparently improper intimate relationships have existed at the New School as well as other institutions of higher learning. How bad the problems have been here we cannot know, both because of the secrecy of Title IX procedures, and also the likelihood that many forms of real or imagined abuse probably have not been reported. I have no knowledge of the unsubstantiated charges enumerated in a student newspaper that some of our administrators at The New School, as well as members of one of our Departments, have interfered with complaints and investigations. But if they were even partially correct, they nevertheless distort the over-all picture of the atmosphere at the New School.

But second, while the Title IX process at The New School has apparently not led to the type of abuses chronicled by Laura Kipnis in Unwanted Advances, the procedures are potentially as deficient here as elsewhere. As I have had the opportunity to experience twice as a faculty advocate, the rights of the accused are no better protected here than at many other institutions. We allow a single individual too much power to be investigator, judge, and jury at the same time. Replacing or supplementing that person by another, hiring an administrator trained as a Title IX investigator, is not a solution in and of itself. We have to my knowledge not expanded Title IX complaints to adjudicating the speech of Title IX critics, or to the conduct of faculty advocates as have some other universities. But as I have recently experienced in an email chain, there may now be a demand, if not yet a tendency, to extend Title IX to forms of speech and criticism not connected to actual acts of discrimination. Finally, in the case of a recent resignation for an alleged Title IX offense, the individual in question has subsequently been denounced to another university, which is now in the process of investigating and perhaps sanctioning him, although he committed no violation there, nor has he been convicted of a crime. Is this person now on some kind of “blacklist”?

I also want to raise the question of whether pre-emption might have unintended consequences. While offering sensitivity training and on line courses seeking to pre-empt harassment may be a good idea, the course we currently require seems to foster faculty surveillance of both colleagues and students, as well as third party reporting. That possibility of course might conceivably lead to the use of Title IX as an arena for other conflicts, or as an act of retribution.

Moreover, research suggests that training courses about sexual harassment do not affect the incidence of improper behavior . The astonishing fact that our faculty, composed of social scientists, philosophers, historians, psychologists and even lawyers, has not been asked to review and comment on such a program until last week should also be noted.

What should be done? We must of course have a full Faculty discussion of all relevant issues. I would like to ask my colleagues to consider the following proposals.

1. The Title IX procedures we currently have should be revised to secure the rights of both accusers and accused.

2. The sensitivity training courses should be revised to avoid establishing an atmosphere of surveillance and denunciation. It should be made clear that faculty members must be open to receiving and forwarding serious complaints, but that third party denunciation should be avoided.

3. It should be clearly stated that Title IX’s ban on discrimination should not be extended to speech concerning what is and what is not harassment, or debates over the interpretation of Title IX itself.

4. The university should however, also make it clear that individuals actively involved in suppressing harassment allegations are themselves potentially guilty of Title IX violations.

5. The New School should make much clearer that sexual or romantic relations between people of significant power differentials (not just faculty and students) are banned at our institution, as in effect they already seem to be. Seeking and receiving implicit permission for such liaisons from Human Resources should be eliminated.

6. Finally, it should be made clear that resignation by persons charged legitimately ends Title IX cases, and that neither The New School, nor any of its faculty, administrators or students should pursue those who have already received the very significant and painful sanction of being excluded from our community.

I am certain that there is a need for other proposals, many of which should be made by people more knowledgeable than many members of the faculty. We should especially hear from those who have had more direct experience, either as injured parties or as litigants in Title IX cases. However, there are problems on both sides of this issue, and that we need new remedies for both.


[1] For a previous round, at another university see the statement of 28 Harvard Law Faculty