Title IX & Tenure: How Separate Standards Can Sow Institutional Discord

Types : Alerts

In 2017 and 2018, under Obama-era guidance, a tenured professor with Ohio University was determined responsible for violating the school’s Title IX policy for acts of sexual harassment and creation of a hostile work environment.  The findings were based on investigations conducted by the University’s Title IX office and under then-promulgated federal regulations employing a “preponderance of the evidence” standard.

The Title IX investigation provided the basis for two subsequent University professional ethics committee investigations, both of which resulted in a finding of responsibility under the same preponderance of the evidence standard and ultimate decision to revoke the professor’s tenure status.

Tenure status, of course, is the Holy Grail of achievement in academia.  Although the specific terms vary between institutions, tenure generally grants a professor near-permanent employment, permitting theoretical freedom to pursue intellectual pursuits without fear of disapproval or discharge.

With so much at stake for the professor, a University Faculty Senate committee was tasked with reviewing the professor’s tenure revocation under a clear and convincing standard.

The preceding sentence should at minimum give the reader pause, most simply for its institutional inconsistency in standard of proof, and most importantly for its statement on what might matter most: professional security for a thrice-convicted, but tenured, faculty member, versus and over the rights of women to access educational and professional endeavors free of sexual harassment.

Following the initial faculty committee’s recommendations to restore the professor’s tenure, a full faculty senate committee overwhelmingly voted on February 1, 2021 to withdraw the report and enforce revocation. The faculty senate committee further included in its resolution a plea that the University Board of Trustees, tasked with rendering the final verdict on tenure revocation, to not consider the committee report in reaching its final decision. Reading between the lines, the full faculty resolution seemingly sought remedy to the potentially inequitable standards applied to procedural and constitutional rights of equal protection.

But the resolution hardly resolves the issue – what happens when institutional standards are not…standard?

As colleges and universities prepare for anticipated Biden administration changes to Title IX regulations, the Ohio University controversy serves as a poignant reminder of the institutional complexity Title IX regulations impose. Consistency in policy procedure are of paramount importance to avoid inequitable outcomes and avoid costly harm, with costs being defined in terms of both currency and reputation.

If you have any questions regarding this ongoing matter, your Title IX requirements and obligations, or your policies and procedures, Ashley R. Lynam or Kacie E. Kergides of Montgomery McCracken’s Institutional Response and Sexual Misconduct Liability groups are available for assistance.