Inside the Title IX Tribunal

June 6, 2022

Scott Yenor

Washington Fellow

Activists have learned how to use Title IX to suppress free speech.

This article was originally published on June 6, 2022 by Law & Liberty.

American universities have long been intensely concerned with civil rights. Every institution of higher learning proclaims its commitment to protecting civil rights on campus. Elite schools compete with one another in finding civil rights violations—so they can show that they are more energetic than other universities about addressing them. At the same time, campus civil rights regimes are potent tools for undermining one of the university’s most important and defining commitments: its commitment to free inquiry and open exchange of ideas. As I have learned, no one is safe from this threat, not even tenured full professors at red-state universities.

The details of my story are banal—I criticized feminism and feminists in a national speech. Strong nations, I argued, cannot exist without strong families. Strong families in turn need respectable men capable of providing, and women interested in having children. Neither of these things happen automatically. Much of our culture, informed through feminist ideology, undermines or dishonors male achievement, while it promotes a vision of womanhood that discounts motherhood. Universities, which I called the “citadels of gynocracy,” contribute to this problem by treating male-dominated majors like engineering as problems to be solved. I also claimed that women shaped by feminism will more likely be unhappy, or, as I put it at the time, “medicated, meddlesome, and quarrelsome.”

These sound bites gave my critics ammo. A swarm formed, mostly through social media, in the weeks following the speech. It started with a trickle, but eventually led to a full-on cancellation attempt. Creepy, threatening phone messages arrived daily for months. I received streams of vulgar and hateful emails. National media coverage began—I was even asked to appear on the Dr. Phil show to work out my issues. Letters to the editor appeared in our local papers. People tried to hack my accounts. Emails tempting me with intimate photos and pornography began to arrive at my university email. Many wanted me fired. 

Boise State University (BSU), my home institution, made a show of defending free speech as the swarm gathered. At the same time, but under the public radar, the university began to solicit discrimination and harassment complaints from students. University spokesmen shared contact information for students to use if they felt harassed or ill-treated. 

Seven days after my speech went quasi-viral, BSU charged me with six civil rights violations.    

Here is a flavor of the charges. The first charge against me was that I “graded women lower than their male peers based solely on sex and not performance.” The university had had access to my grades for the past twenty-one years. BSU should have known that an aggrieved student would not be in the position to know anything about aggregate grades over decades. (It was also in a position to know that such grades would and did vindicate me). One activist-accuser even mentioned that she got A’s in my classes, but that was only because she was a good writer and better than her colleagues. Sounds like pretty good evidence against her claims. Yet the case proceeded. 

One student-activist had alleged that I did not provide feedback on papers written by female students, while I provided copious feedback on papers written by males. Others made similar allegations. Students were not asked to produce their papers or communications. As it happens, I email students extensive comments on their papers, so I rebutted these charges with three clicks of my phone during my interview with the single investigator. My emails are university property: it could have confirmed this just as quickly as I did.

Officially, of course, everyone pretends that the harassment and discrimination charges had nothing to do with the speech. In the official record, all complaints were “unsolicited.”

My episode highlights an unsettling truth: mechanisms that secure civil rights have become threats to free inquiry and the freedom of the mind, and to any traditional understanding of political liberty. Since universities are ostensibly committed to free speech, it is difficult to punish people directly for their unpopular views, but civil rights processes offer another effective method for silencing dissent. Harassment and discrimination policies set by universities often serve this purpose. 

On campuses, students and underrepresented minorities get to determine what is and what is not discrimination when making allegations. Is giving men lower grades than women discrimination against women (holding men to higher standards) or against men (hurting their grade point averages)? Is giving students lots of feedback on papers, but lower grades, discrimination, or is it more discriminatory to give them high grades without much feedback? Students decide. Title IX policies grease the skids for willing student accusers, promising them anonymity, immunity from cross-examination, and shields from perjury laws. Then universities use the process itself as a punishment, even if they find no violations.

To preempt the conservative press and conservative state legislatures, universities declare that free speech is never threatened on our campuses. Nevertheless, everyone understands the lesson about the acceptable limits of discourse. In short, people can say what they want, but if they say certain things, or ask certain questions, discrimination charges are coming. This has happened again and again across the country to heterodox professors.

How can free speech be protected if the university refuses even to acknowledge the possibility that campaigns like the one levied against me might themselves be intended to suppress inquiry?

Once BSU invoked civil rights laws, I was headed for a Title IX investigation. This is no trial according to traditional due process. Witnesses are not named. Accusers cannot be cross-examined. The motives of the accusers are never explored and are assumed to be pure. Charges are amorphous and subject to change. Investigator and judge are the same person. Any country whose judicial system used such procedures would immediately be denounced by all world organizations as bogus. But not in America, when it comes to the sacred word “discrimination.” 

Nor do universities necessarily follow their own policies. BSU, for instance, initially made allegations that were outside its own statute of limitations (which was 180 days). When I asked why allegations outside the statute of limitations were allowed to proceed, BSU’s Title IX office dropped them without comment. 

But more witnesses and more charges emerged. Students made accusations of “racism” to go with the initial charges of misogyny. BSU believed or pretended to believe all students. In fact, under the current rules, students are encouraged to invent false charges against wrong-thinkers. 

I built a portfolio to rebut the charges. I went through years’ worth of class notes and grades to build up a case that I graded both sexes fairly, without any disparities showing disadvantages for females. I crunched numbers on every assignment. I listened to hour after hour of old class recordings. I searched email communications. Time that would otherwise have been spent in productive labor was lost to rebutting spurious charges.

Even if their accusations are determined to be false, students face no consequences. For me though, the cloud of suspicion never entirely dissipates. In fact, I am more likely to get in trouble, precisely because I have been exonerated by a formal investigation. If I ever mention a lying student’s name, or allude to the lie so it could be traceable to a specific student, I will be guilty of “retaliation” under BSU’s Title IX policy. Accusers are given a platform on which to lie, then are protected from punishment when the falsehoods are exposed. The process hampers self-defense: it takes place in the dark and mostly stays in the dark. If I brought or bring the charges out of the dark, I will have committed the nebulous violation of retaliation.  

The university still insists that free speech is protected on its campus, and that free exchange is highly valued. But how can free speech be protected if the university refuses even to acknowledge the possibility that campaigns like the one levied against me might themselves be intended to suppress inquiry? “It is irrelevant what motivated the individuals to report Dr. Yenor’s behavior to the University,” the report states. From this, it would seem to follow that the university does not mind if students contribute to a Title IX investigation with the explicit goal of silencing a professor whose views displease them.    

My interview with the investigator took just over an hour, whereas most of those accused suffer through much longer ordeals. There were six charges. All were completely ridiculous and quite easily refuted. I was prepared, because I have been in this position before; four years ago the university conducted a similar investigation after I stirred controversy by writing that transgender ideology in the hands of government bureaucrats poses a threat to parental rights. I record and store all of my lectures so that students cannot lie about what I say. I keep meticulous records of all grades. I keep all of my paper comments in email files. In this case, the investigator had no choice but to give me the most complete vindication that this farcical affront to due process can earn. He found “insufficient evidence” to support BSU’s charges. 

“Insufficient evidence”? That’s a lame way to describe vindication. Welcome to the civil rights regime on the modern campus. No one accused is innocent. I am, according to my experienced attorney, one of the few to survive a Title IX hearing with no adverse action. 

Free speech is indeed a valuable bedrock of academic life, but my episode shows that a commitment to free speech is not enough in the face of the civil rights apparatus that has emerged in our universities. Harassment and discrimination processes make for ideological hegemony on campus. All the free speech legislation in the world will not protect universities from this kind of civil rights regime.