In May 2015, Laura Kipnis was famously the subject of a Title IX investigation by Northwestern University for an essay she wrote suggesting there are too many Title IX investigations.

Today, Jeannie Suk Gersen reports for The New Yorker that Kipnis was the subject of yet another Northwestern Title IX investigation earlier this year — this time for writing “Unwanted Advances: Sexual Paranoia Comes to Campus,” a book about being investigated for saying there are too many Title IX investigations.

The month-long investigation was sparked by complaints about “Unwanted Advances” from four Northwestern faculty members and six graduate students. As with her first investigation, Kipnis was ultimately found not responsible for violating university policy.

However, reviewing Gersen’s report, it’s easy to see how the investigations themselves function as punishment, to say nothing of the threat they pose to academic freedom: in the most recent investigation, Kipnis was asked to respond to at least 80 written questions about her book and to provide her source material. She was also urged to keep the investigation confidential.

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News of Kipnis’ second investigation comes just weeks after Secretary of Education Betsy DeVos’ announcement that the department will launch a public “notice-and-comment” process to reform the government’s approach to enforcing Title IX, the 1972 federal law prohibiting sex discrimination in federally funded educational programs.

That approach has been criticized extensively by civil liberties groups (including FIRE) in recent years for imperiling due process rights and “twisting” the definition of sex discrimination to essentially bar any expression or commentary on sexual themes that someone might find subjectively offensive. The amount of protected expression that is now being cast as unlawful under Title IX is staggering: law school test questions about Brazilian waxes, an anti-Donald Trump art exhibit, teaching art theory in art school, teaching rape law in law school — or even writing an essay or book critical of Title IX itself.

In her announcement, DeVos said “[t]he current system hasn’t won widespread support, nor has it inspired confidence in its so-called judgments.” She went on to say the department will “replace the current approach with a workable, effective, and fair system.”

“Unwanted Advances”

Kipnis described her first Title IX investigation as an “inquisition” in a May 29, 2015 essay for The Chronicle of Higher Education. The essay was published while Northwestern was investigating her for a previous piece she had written for the Chronicle called “Sexual Paranoia Strikes Academe,” which elicited protests from students and demands that the university take action.

As the public later learned, it was two graduate students who decided to file Title IX charges against her. The university asked Kipnis to keep the investigation confidential. After 72 days, she went public about it with her May 29 essay. Later that same day, she received word that she had been exonerated.

Northwestern was roundly condemned for its prolonged, secret investigation of Kipnis. “There is simply no conceivable way in which an essay discussing publicly available (and indeed, widely discussed) information could constitute a violation of Title IX,” FIRE wrote at the time. “The transmogrification of Title IX into an all-purpose excuse for knee-jerk overreactions to complaints about speech — sometimes only tangentially related to sex — is an unacceptable trend that endangers freedom of expression and undermines the purpose of higher education.”

“Unwanted Advances” tracks the events leading up to Kipnis’ first investigation in the spring of 2015 and explores the story of former Northwestern philosophy professor Peter Ludlow, who resigned from his position at the university amid an investigation into his relationships with two Northwestern students.

Ludlow claimed the relationships were consensual. The two students involved alleged that portions of them were not. In her book, Kipnis explores these dueling claims, uncovering what The New York Times calls “a shadow world of Title IX investigations.”

“Unwanted Advances” received widespread praise for its strong defense of female agency (Kipnis is a committed feminist) and its critical look at the politics of campus sex. However, perhaps unsurprisingly, it also received criticism from some of the book’s principal players, including from one of Ludlow’s student accusers.

On May 16, the student filed a lawsuit against Kipnis and her publisher, HarperCollins, accusing Kipnis of revealing “private and embarrassing” details about her personal life and portraying her in a “false light.”

A motion to dismiss the lawsuit was filed on July 21. The motion argues that the book is a work of opinion, and falls within the scope of the First Amendment.

A new “inquisition”?

Gersen reports that one of the 10 complainants in Kipnis’ newly revealed Title IX investigation was the same graduate student who sued her in civil court in May. The complaint was filed days before the civil suit, and the complainants charged that her publication of “Unwanted Advances” — particularly its discussion of Title IX and the possibility of false accusations of sexual misconduct — violated Northwestern policies on retaliation and sexual harassment, which is considered a form of sex discrimination under Title IX.

Soon after the complaint was filed, Northwestern’s investigatory machinery lurched into action, according to Gersen. The investigators presented Kipnis with a spreadsheet of dozens of quotations from her book and 80 accompanying questions, such as:

“What do you mean by this statement?“

“How do you respond to the allegation that this detail is not necessary to your argument and that its inclusion is evidence of retaliatory intent on your part?”

“What is the source/are the sources for this information?”

Notably, this meant that Northwestern was asking a journalist and scholar to divulge her confidential source information. Kipnis decided not to answer any of the questions on advice from her lawyer.

However, according to Gersen, Kipnis did submit a statement arguing that “these complaints seem like an attempt to bend the campus judicial system to punish someone whose work involves questioning the campus judicial system, just as bringing Title IX complaints over my first Chronicle essay attempted to do two years ago.”

The investigators also analyzed her social media accounts, emails, and talks following the book’s publication.

Kipnis was asked to keep the investigation confidential, but was not required to. According to Gersen, she went public with the information in a recent court filing.

After a month-long investigation, Kipnis was ultimately found, once again, not to have violated university policy. However, the decision letter did suggest that her dean could sanction her under Northwestern’s policy on “civility and mutual respect.”

According to Gersen, the university contended that some of Kipnis’ statements after “Unwanted Advances” was published in which she questioned the reliability of Ludlow’s student accusers’ accounts, and a statement that she hoped “the book will cause a bit of a shit storm,” could be interpreted as “demeaning and/or intimidating.”

As Gersen points out, and as FIRE knows all too well, overbroad and vague civility codes are often wielded by university administrators to punish controversial speech on campus. Such codes can be used as an all-purpose failsafe option if a Title IX complaint doesn’t work out. Thankfully, Kipnis’ dean decided that she did not violate the civility policy.

Did Northwestern need to investigate?

But while Kipnis was ultimately found not responsible for any policy violations, the threshold question remains: Under the existing Title IX framework, was Northwestern required to investigate the allegations against her, however specious? And if the university was required to investigate, to what extent did it need to do so before a judgment was delivered?

Kipnis herself asks these questions in “Unwanted Advances”:

“I never really learned if any Title IX charge that’s filed has to go forward,” she writes, “though in the aftermath [of my spring 2015 investigation], the university took the public position that their only choice had been to launch the investigation machinery.”

The key is whether federal Title IX requirements mandate that Northwestern investigate all Title IX-related allegations. If they do, the university has not only a plausible excuse for investigating Kipnis, but a government mandate to do so.

A 2014 document from the Office for Civil Rights of the Department of Education, the federal agency responsible for enforcing Title IX on campus, states that “a Title IX investigation is not discretionary.” But that same document continues on to say that “the laws and regulations [the Office for Civil Rights] enforces protect students from prohibited discrimination and do not restrict the exercise of any expressive activities or speech protected under the U.S. Constitution.”

A 2003 “Dear Colleague” letter from OCR — explicitly reaffirmed in the 2014 document — also plainly states that “OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution.”

Therefore, it’s clear that Northwestern was required to review the allegations against Kipnis. However, as soon as that review determined that the expression in question was protected by the First Amendment and the facts were not in dispute, there should have been no need for further investigation. This is the only interpretation that both takes complaints seriously and respects protected expression.

And Kipnis’ expression was protected.

Truthful writing about issues of public concern, using publicly available information, constitutes protected expression under the First Amendment. Just because the writing reveals uncomfortable truths about a subject does not put it outside the protection of the First Amendment. So by OCR’s guidance, Northwestern’s protracted investigations of Kipnis were not required. In short, when confronted with protected speech, there is nothing to investigate; there is nothing to “check into.” Case closed.

Of course, Northwestern is a private university and therefore not bound by the First Amendment. But as OCR wrote in its 2003 letter, that does not broaden the scope of Title IX investigations:

OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR. [Emphasis added.]

Northwestern is not bound by the Constitution, but the federal government is. Government agencies like OCR cannot mandate that private universities violate constitutional principles, like the freedom of speech. Therefore, if Northwestern subjects Kipnis’ plainly protected expression to an extended investigation, it does so of its own accord, and not because of any federal requirement.

As a private university, Northwestern is free to write policies that more stringently regulate expression than what the First Amendment would allow. However, Northwestern promises its community robust expressive rights, stating that the “[u]niversity is committed to the ideals of academic freedom and freedom of speech.”

Northwestern can’t promise its students and faculty members academic freedom only to then, for example, enforce a campus civility policy against a faculty member for writing a book about the issues of the day. Some courts have actually found this to be a contractual violation.

Secretary DeVos’ announcement last week did not say how the Department of Education will change its Title IX enforcement moving forward. Would a different federal approach to Title IX have prevented Kipnis’ two investigations? It’s unclear. Theoretically, OCR’s 2003 and 2014 letters should have already foreclosed a federal mandate for the investigations. Nevertheless, DeVos did express concern for how the incentives undergirding the current Title IX framework punish and chill speech:

“Punishing speech protected by the First Amendment trivializes actual harassment,” she said. “It teaches students the wrong lesson about the importance of free speech in our democracy. Harassment codes which trample speech rights derail the primary mission of a school to pursue truth.”

Report of the ad hoc committee on academic freedom

On February 22, an ad hoc committee on academic freedom issued a report to the Northwestern Faculty Senate addressing “serious violations of academic freedom” stemming from Kipnis’ first investigation and the case of Alice Dreger, a faculty member who resigned in August 2015 after the university censored a faculty-run publication she edited. The report was commissioned by Laurie Zoloth, president of the Faculty Senate, and made recommendations to avoid violations of academic freedom in the future.

The report recognized that Northwestern had “taken steps to prevent a recurrence of the Kipnis episode” that included a revision to the university’s Policy on Sexual Misconduct and the new Sexual Misconduct Complaint Resolution Process, and that had the revisions “been in place at the time of the complaint against Kipnis, it is likely that no investigation would have taken place.” Faculty members were therefore not expecting another Northwestern inquisition. But it didn’t work out that way, since the revisions obviously did not “prevent a recurrence of the Kipnis episode.”

For its part, Northwestern didn’t appear to lend much credence to the authority of the report. “This is an internal document by an ad hoc committee,” Northwestern Director of Media Relations Bob Rowley told FIRE in an email. “It was sent not to the administration for comment, but to another committee. It was not discussed by the Faculty Senate, and it was not voted on at the Senate. It does not reflect the views of the Senate.”

Gersen reached out to Northwestern for comment about Kipnis’ latest investigation but the school did not respond by press time.

“[N]early every academic I know … lives in fear”

Kipnis wrote in her book that she regularly receives reports of similar Title IX investigations from professors across the country. She feels that too often they are hidden from public scrutiny, threatening academic freedom and creating a potent weapon to silence ideological opposition. That’s why she published her book. She calls the Title IX bureaucracy an “insatiable behemoth” that is “fundamentally altering the intellectual climate in higher education” where “freedoms most of us used to take for granted are being whittled away.”

Perhaps most worrisome, Kipnis sees Title IX’s ever-expanding scope being weaponized by faculty to target rivals, and by students to target faculty, often for obviously protected expression. (Her concern was prescient. After all, four faculty members were among the complainants in her latest investigation.)

In an anecdote from “Unwanted Advances,” Kipnis reveals that another Northwestern professor wrote to The Chronicle of Higher Education in 2015 about the pending Title IX charges, urging the publication to distance itself from her. “It was like being tattled on to the teacher,” she wrote.

“Let me just say that nearly every academic I know — this includes feminists, progressives, minorities, and those who identify as gay or queer — now lives in fear of some classroom incident spiraling into professional disaster,” Kipnis writes in her book. “A tenured female professor on my campus wrote about lying awake at night worrying that some stray remark of hers might lead to student complaints, social media campaigns, eventual job loss, and her being unable to support her child.”

Kipnis writes that, at first, she thought these professors were exaggerating.

She has since learned otherwise.

If you are a faculty member who feels your free speech or academic freedom rights were violated by Title IX abuses, please let us know: Submit a case to FIRE’s website.