Can refusing to attend mandatory Title IX training be grounds for suspending a tenured faculty member?

Question

In the US all the universities that receive federal funding must ensure (or so I heard) that all their employees and students take one class about the Title IX law, concerning sexual harassment and related subjects. Can refusing to attend these classes be a motive for firing or suspending a tenured member of faculty? Is there precedent of tenured faculty being fired for this?

[I ask the question not for myself, but because at my university (Brandeis), the administration has decided on its own to add to include in the title IX course a new "racial awareness" training that I find highly objectionable. Before encouraging others to boycott these trainings, I would like to know what I expose them to.]

Answer 1

Put yourself in the shoes of a university administrator. The federal government has made a law requiring your university to do certain things if it wants to maintain its federal funding. Those things are to some extent subject to interpretation, but according to legal opinions of your university's lawyers (e.g., the general counsel or other high-ranking legal advisers) requiring your faculty to undergo Title IX training about race is a good way to comply with the requirements and minimize the risk to your institution. So, you institute these requirements as mandatory. Some months later you are informed that a tenured faculty member is refusing to take the training.

What do you do? Select the answer that applies:

A. Invite the faculty member over for a chat in your office, where over cigars and a glass of scotch you both joke about the silliness of the federal requirements. You congratulate him on his good sense in objecting to these requirements, ask him to keep quiet about not taking the training so as to not make trouble for your university, and jovially send him on his way with an invitation to meet soon for a round of golf.

B. Invite the faculty member over for a chat in your office, where you tell him that you are dissatisfied with his disregard for university policy, but that you understand that he is objecting to the training on principled, conscientious grounds, and confide that you even agree with him to some extent. Taking that into account, and taking into account the fact that he is tenured and that you value his research contributions, you tell him that you have decided not to take any disciplinary action. You caution him to keep quiet about not taking the training and not encourage others to follow in his footsteps so as to not make trouble for your university, and send him on his way.

C. Send the faculty member a sternly-worded memo, with a copy to his dean and department chair, where you inform him that following his refusal to follow the mandatory requirement to undergo Title IX training, you are initiating disciplinary proceedings against him. You caution him that disregard for university policies on Title IX will not be tolerated under any circumstances, and that such proceedings could lead to various sanctions up to and including his termination. You conclude the memo by saying that until the proceedings have been set in motion some weeks from now, he has one last chance to satisfy the training requirement.

Now, it may be that you are the kind of person who would select answer B, or even A. I'm not saying it is unreasonable or wrong to be such a person, but if that is the case, I maintain that that would be in strong correlation to the fact that you are not a high-ranking university administrator -- let alone a successful one -- and probably never will be (I say this as a completely neutral statement, which I consider to be neither an insult nor a compliment). In practice, answer C is the only answer that a REAL university administrator (and certainly a successful one, who has a good ability to weigh the consequences of each of the different options on his/her own career and institution) will realistically choose.

To summarize, the answer to your question is an emphatic Yes: refusing to take mandatory training not only can lead to suspension or termination, but that is in fact the most likely outcome of such an action, by an overwhelming margin.

Answer 2

The short answer is yes, employees can be fired for not attending Title IX training. One example from Ohio State is here (the band director was fired). I could not find any examples in which a tenured professor has been fired for this. Failure to comply with Title IX is serious for any university receiving federal funding (which is essentially all universities in the US), so it would be an extremely serious situation.

Also, the premise of the question is misleading. It is not true that all university students and employees are required to attend Title IX training. From the US Department of Education's document on this

What type of training on Title IX and sexual violence should a school provide to its employees?

Answer: A school needs to ensure that responsible employees with the authority to address sexual violence know how to respond appropriately to reports of sexual violence, that other responsible employees know that they are obligated to report sexual violence to appropriate school officials, and that all other employees understand how to respond to reports of sexual violence. A school should ensure that professional counselors, pastoral counselors, and non-professional counselors or advocates also understand the extent to which they may keep a report confidential. A school should provide training to all employees likely to witness or receive reports of sexual violence, including teachers, professors, school law enforcement unit employees, school administrators, school counselors, general counsels, athletic coaches, health personnel, and resident advisors. Training for employees should include practical information about how to prevent and identify sexual violence, including same-sex sexual violence; the behaviors that may lead to and result in sexual violence; the attitudes of bystanders that may allow conduct to continue; the potential for revictimization by responders and its effect on students; appropriate methods for responding to a student who may have experienced sexual violence, including the use of nonjudgmental language; the impact of trauma on victims; and, as applicable, the person(s) to whom such misconduct must be reported.

So, the training is to teach employees likely to be confronted with sexual misconduct or receive reports of sexual misconduct how they should deal with that, including to whom at the university they should report the incident.

In particular, Section J deals with what training universities should provide.

Of course, you are free to do what you like, but I don't think you should advise people to refuse this training. They are putting themselves at risk of being fired over sessions that are designed to give them information on how to deal with a potentially traumatic situation. It seems a bit like refusing CPR training if the university decided to make that mandatory: I suppose the session is a bit of a pain, but is designed to help you deal with a situation in which responding appropriately could be critical.

Answer 3

I want to begin by saying that I don't have any direct experience with the firing of tenured faculty, nor am I intimately familiar with Title IX issues. In particular, the requirement mentioned by the OP regarding Title IX training for all faculty are not in place at my (public, US, research) university.

But I do have experience with the way universities and university administrators work. For instance, I had a colleague who in his first year did not want to sign a standard intellectual property agreement (which I have no memory of signing upon my arrival two years before, but I assume that I must have done it). It seems like a somewhat analogous question to ask: would the university fire this (untenured) person? The answer that I would give to that is "Eventually perhaps, but there would be a lot of intermediate steps, and the professor would have to be durably intransigent in a way that tired out the higher administration and their lawyers." In the particular case at hand, this issue went on for several months, and my colleague was satisfied by being permitted to sign an earlier version of the intellectual property agreement that he found more favorable.

As another example, every once in a while I am required to take an online test to make sure I am sufficiently cognizant of certain current laws: not related to Title IX but rather to FERPA. How does this work? In many stages: there is some announced deadline, and as it approaches I get reminders from someone in my department. If I miss the deadline I will get more personalized, urgent reminders. If I were durably unresponsive then (I am told) I will get locked out of access to certain student records: e.g. I would not be able to look up any student grades online. The idea here is that if my lack of training is viewed as a liability, the university will take steps to remove me from the specific situation that is causing the liability rather than suspending me generally. Of course, being removed from that situation may cause annoyance or hardship for me, and it may even interfere with my job.

Coming back to the question asked: in my own opinion it is very unlikely that a tenured faculty member would be suspended or fired for not complying with a Title IX training course...at least not as a first or even fourth step. Rather the university would on the one hand take steps to assess the liability involved in that specific faculty member not having the training, and if that liability feels considerable to them then they will try to reduce that liability while keeping the faculty member and/or squeeze the faculty member in such a way as to make carrying out the training preferable. By the way, there are many ways that an administration which is unhappy with a tenured faculty member can make that faculty member's life less pleasant which completely circumvent the expectations surrounding tenure: e.g. they could mess with the teaching obligations of that faculty member, regulate or limit their access to certain groups of students, give them less of an annual raise or no raise at all, and so forth. If the administration really thinks it is dead right and you are dead wrong, I think that they can, while keeping you around, make life more miserable for you than you can for them. In the case of the OP, he says that he will just leave. Exactly: that's a much more likely outcome.

I think that in order to consider suspension or firing in the short term, the administration would have to find some specific, actual legal liability rather than just a potential one. If a university fires a tenured faculty member for their own interpretation of a federal law, the probability of a huge fuss including censure from faculty associations and unions and/or a big lawsuit seems rather high. I would expect them only to risk that in the face of some other similarly proximate scandal or lawsuit. Another answer contains a link to a university band leader (untenured) who was fired for refusing Title IX training until after he mishandled a sexual harrassment / assault case between students under his direction. In that case they pretty much expect legal action either way, and they're weighing one lawsuit against another. If the OP has not had any actual dustups or issues with students, I would be absolutely flabbergasted (note: this could happen, obviously!) if he were fired rather than squeezed or forced out in a more subtle way.

Answer 4

In California, state law (specifically AB 1825, bill text here) requires that

...an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position. ... Each employer covered by this section shall provide sexual harassment training and education to each supervisory employee once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation ...

Since a professor is certainly a supervisory employee (for example, when advising graduate students), this legal mandate applies to professors. I have not tested this, but I would imagine that if I took deliberate actions that put my employer in conflict with state law, this would jeopardize my employment; similarly, I would not expect to remain employed if I defrauded the NSF or NIH on my employer's behalf.

As a side note: one might not be aware (as I was not, before this training) that if a student mentions a sexual assault to you, you might be legally obligated to report this to the authorities, even if the student asked you not to tell anyone. If not, one might well commit to the student "sure, I won't mention this to anyone"; especially if you are someone who values your word, you might find it quite difficult to betray this commitment once it is made.

But your ignorance of the law then opens up your employer to liability, no different from a manager who violates labor laws governing overtime pay because of ignorance of the law. In cases like these, an employer is quite wise to make sure its employees are aware of their legal obligations. You may not like your legal responsibilities, but the proper response in that case is to advocate for changes to the law.

Answer 5

When people speak about Title IX they are referring to a United States federal law, 20 U.S.C. § 1681(a), which states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The law itself, as you can see, is short and sweet. However, legal decisions and guidance from the U.S. Department of Education have given it a broad scope covering sexual harassment and sexual violence.

It is the Office for Civil Rights (OCR) which enforces Title IX, and it has published a helpful document which outlines what needs to be done to be in compliance with Title IX (see guidance letter), and tells schools how the Department will review and enforce Title IX complaints.

If you are still in doubt about what is objectively required vs. what your own institution has put in place, you can ask OCR for clarification. The document I referenced guides you in finding the appropriate contact information for your geographical region.

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As an additional note for your particular situation:

OCR "is committed to ensuring that all students feel safe and have the opportunity to benefit fully from their schools’ education programs and activities." The guidance letter explains that when a complaint is filed, OCR is on the look-out for conduct that creates "a hostile environment [and] interferes with or limits a student’s ability to participate in or benefit from [a] school’s program."

I invite you to put yourself in the shoes of a woman in a department where you are teaching. How would you feel, reading this thread, and contemplating taking a course from the OP? Frequently, women already feel uncomfortable in male-dominated fields. Do you think your published remarks will tend to increase or decrease their comfort level in a department where you are employed?

Here's an analogy. Suppose you are a student from the Philippines. Now suppose that you are enrolled in a department that has set up a required training session for staff, to remedy some civil rights issues involving people from the Philippines. If one of the professors publishes things online describing his negative views about a requirement to attend the training session, will that increase or decrease your feeling of being welcome in that department?

Answer 6

From my very limited understanding of labor law, refusing to do something that your employer deems is mandatory is generally grounds for termination. This is in essence the difference between mandatory and optional/recommended. There is of course a grey area related to an employer mandating employees to do things beyond their power. An employer is probably not legally allowed to mandate an employee give them $1000. If that demand was made and you were fired for not complying, you would might be able to sue for damages. Mandating employees undergo training related to sexual and racial awareness seems well within an employers right.

Answer 7

If you just officially boycott the training, there is a good chance that they will fire you after lengthy proceedings. There is also a chance that this boycott will achieve absolutely nothing.

Luckily, in dealing with administrators there are many other ways:

• Keep a low profile. There is a good chance that they will overlook you. That is what I did, and they never caught up with me till I (very happily) left academia. If they call you up, just offer to call back and forget about it.

• While some administrators really do care, many more that I've met are just drones that would happily enforce any regulation. They might just as well enforce segregation instead of Title IX training without any difference. So it makes absolutely no sense to argue the subject with them. Probably they have no clue what is even going on. To deal with administrators, you have to argue the process itself. Big chance that they violated some of their own procedures, missed deadlines, the wrong person signed the documents, documents are not on the right letterhead (e.g. faculty often uses their personal letterhead for university administrative. How are you supposed to know that a letter by Prof. X from the department of sociology is an official document stating a university policy?)

• I assume that the reason you don't want to attend the Title IX training is not because you are against discrimination, but because this 'training' is itself blatantly racist and sexist. Point out how you are feeling 'threatened' by the training, how it is 'creating a hostile work atmosphere', how you feel singled out because of your skin color and so on. Good chance they won't touch you. This is such a hot potato that I see it as the most efficient way to get a more reasonable training class established. If you get the training changed to something neutral and non-racist, you have achieved your goal. This is the right approach IMHO.

• Make up some pc reason why the training is highly offensive to someone in your situation.

• Often administrators responsible for this very special area are highly biased prejudiced partisans that try to push their own agenda. It is quite possible that the university itself just wants to fulfil the Title IX requirements on paper to avoid possible lawsuits (after all, why do they care). So to check of a box they hire some nutcase who tries to push his own agenda, as are most people offering services in this field. Point out to the university that they've hired a loose cannon that actually puts them more at risk for a Title IX lawsuit, because they force everyone to sit through a racially biased class.

Good luck!