March 1, 2024
There has been much debate about “cancel culture” in recent years, particularly in our increasingly divisive society where discussions of topics of gender, sexuality, race, class and other identity-related matters can often be fraught, heated, and even downright dangerous to a person’s reputation and livelihood.
Those on one end of the political spectrum may be overestimating the widespread impact of “cancel culture” and confuse the natural and normal consequences of a person’s actions with a political vendetta. Those on the other end may be ignoring what is a serious and widespread change in our society that is worthy of scrutiny with respect to fairness, due process, and general concerns about penalizing a person permanently without any chance for redemption.
Whatever a person’s stance might be, the reality on the ground at many college campuses in recent years is that professors and even students often feel like they must sacrifice the freedom of speech and originality of thought that has been a hallmark of our nation’s higher educational system for centuries due to fear of having their careers ruined or at least permanently damaged.
This concern is not imagined, as Title IX – a federal law long used to promote equity in sports and other aspects of life – has in recent years been used to penalize those who engage in unpopular speech, and this may expand in the near future.
Title IX and Classroom Speech
The dangerous intersection between campus speech and Title IX disciplinary proceedings was exemplified by the case of Richard Paxton, a tenured professor at Pacific University in Washington. In October 2020, Mr. Paxton was suspended by the university pending a sexual misconduct allegation relating to comments he had made in class. To be clear, sexual misconduct such as harassment and assault can be prosecuted under Title IX, but historically statements made during class have not been a common subject of Title IX proceedings.
The statements in question, as relayed by Paxton’s attorney, involved his retelling of an experience that he had had at New Orleans drag bar 20 years prior and which he had retold many times as part of presenting an academic lecture in class. According to his attorney, Paxton was making a point about schema theory and specifically disequilibrium of one’s schema by seeing what appeared to be women outside the bar and then understanding that they were in fact “female impersonators.” In a separate point, Paxton made the assertion that “every person has a gender.”
After several students complained, the university accused him of making “transphobic” statements in class, and suspended him immediately pending the Title IX investigation. According to his attorney, Paxton was then told he must resign or face a lengthy suspension without pay. In commenting on the Title IX disciplinary proceeding, the university commented that it would not “tolerate harassment, discrimination or retaliation of any kind.” The case has proceeded for years without apparent resolution, and Mr. Paxton has since passed away.
New Proposed Changes to Title IX Could Increase Speech-Related Disciplinary Proceedings
Proposed changes to Title IX – presented by the Biden Administration in 2022 for public comment (of which hundreds of thousands of such comments have been received) and still not final as of early March 2024 – would actually provide university officials with more bases by which to discipline professors and students based on speech alone via Title IX than previously available.
According to a report by The Hill in 2022, one proposed rule change to Title IX would “pose a severe threat to free speech” by “lower(ing) the threshold for what constitutes ‘harassment’ to the point where it reaches even stray remarks that someone deems offensive.” The report further concludes that “the rule would reach speech far outside the school environment, such that school officials could police comments on personal social media or other contexts far from the learning environment” and “would allow anyone to report speech and spark an investigation, enabling the most thin-skinned on campus to launch an inquisition.”
Regardless of what one may think about the social and political wisdom of enacting such a rule, the end result of the rule being enacted may well be a significant increase in Title IX disciplinary proceedings being pursued against students, professors and administrators based on what had previously been protected speech.
Consequences of a Title IX Speech-Related Violation
The consequences of a Title IX violation are significant. These might include loss of tenure, loss of employment, loss of tuition, suspension or expulsion from a school, fines, and work restrictions, all in addition to the personal and professional reputational damage that can come as a result of even an unproven allegation.
Because schools themselves can face external pressure in the form of federal intervention for not prosecuting Title IX violations, and internal pressure from students and others to vigorously pursue and discipline perceived violators, they are often motivated to take swift and aggressive action in pursuing Title IX disciplinary proceedings against students and staff.
Contact a Title IX Defense Attorney Today
If you are a professor or staff member who is facing or potentially facing the prospect of a Title IX disciplinary proceeding based on allegations of misconduct, it is important to take decisive action to protect your interests. The approach of attempting to “go it alone” in the hope that the issue will be quietly resolved in a positive manner without the help of experienced counsel and guidance can result in irreversible negative consequences that can impact your professional life for decades to come.
The attorneys of Zweiback, Fiset & Zalduendo understand the stress, anxiety, and fear that comes with a Title IX disciplinary proceeding – or even the threat of such a hearing – and we provide zealous counsel and representation to help our clients avoid negative outcomes and move on with their lives. Contact our office to speak with an experienced Title IX defense attorney regarding your situation today.
