When Title IX Is a Threat

The newest federal guidance for colleges and universities investigating sexual misconduct emphasizes due process for both the accuser and accused. Among other requirements, institutions are legally obligated to presume the accused is innocent prior to starting any investigation.

That’s not what happened at Pacific University in Oregon, where one professor of education who made controversial comments about gender says he was told to quit or be found culpable in an investigation under Title IX of the Education Amendments of 1972, the federal law prohibiting gender-based discrimination.

“My guy has been disappeared,” said the professor’s lawyer, Robin DesCamp, adding that it’s been more than 130 days “since my client was kicked off campus like a criminal.”

The Pacific story isn’t so much about what the professor, Richard Paxton, said or didn’t say. Even the interim chair of the campus’s American Association of University Professors chapter condemns some of his reported comments. Instead, it’s about what happens when an institution allegedly uses Title IX as a cudgel to get inconvenient professors to go away.

Pacific said in statement that it “takes seriously all allegations of misconduct and follows established procedures for investigation and resolution of those allegations.” It declined further comment, citing “our responsibilities for confidentiality” on personnel matters.

Schema Theory and a Night Out in New Orleans

Paxton, via DesCamp, says that he was called to an October virtual meeting with Leif Gustavson, dean of the College of Education, and Jennifer Yruegas, who serves as an associate dean in the College of Business and Pacific’s general counsel and associate vice president of human resources. At the meeting, Yruegas allegedly accused Paxton of violating students’ civil rights in telling an anecdote in class days prior.

The story, which Paxton says he’s told before without incident, was meant to illustrate the psychological schema theory of how the mind works, particularly Jean Piaget’s notion that schemas develop through a process of assimilation and accommodation. Paxton says that gender is one of the most studied aspects of schema theory, in that humans quickly distinguish between male and female, so he told his students how he and some old graduate school friends once got a surprise after attending a meeting of the American Educational Research Association in New Orleans.

Looking for a bar to listen to some jazz music after a good dinner, the all-male group headed to a promising spot across the street, Paxton wrote in a summary of the story provided by DesCamp. “One of the things that got our attention was a group of frankly rather fine-looking ladies standing out front smoking. ‘Looks promising,’ we said.” Yet upon getting closer to “where these ladies in short-shorts were still hanging out smoking, we noticed a sign above the door. It said: ‘Y’all come in. World’s Best Female Impersonators.’”

Suddenly, “our attitudes changed. Our schemas were put in disequilibrium," Paxton said. “A few nervous comments were exchanged and we quickly decided to go somewhere else.”

Paxon said he picked this story because its captures students' attention. But a student in the class found it transphobic and reported him.

Yruegas, who is the university’s Title IX coordinator, as well, allegedly told Paxton that if he didn’t accept a “soft landing” she was offering and resign, she’d launch an investigation that would become public, fraught and result in his termination. She gave him the weekend to submit his resignation, sending him a voluntary separation of release agreement that same day.

Contradicting Title IX’s renewed emphasis on due process, the agreement said that Pacific wouldn’t formally investigate his conduct if he resigned. And instead of the six-month severance agreement that Paxton said Yruegas offered at the virtual meeting, the agreement stipulated three months’ severance pay.

No-Investigation Clause

In a separate email to Paxton about the proposed agreement, Yruegas again promised not to investigate him if he resigned, writing, “We can write in specifically what you’ve [sic] want the communication to be. I made sure there was a clause that the Title IX investigation would not occur.”

Paxton didn’t sign. He was put on indefinite paid leave and denied access to campus and Faculty Senate meetings. He says he has received little to no information from the university about his case, beyond a December memo notifying him of further allegations uncovered in the investigation.

According to that memo, a student in one of his fall courses said that Paxton “told a story during which he stated that ‘every person has a gender,’ which ignored the gender identify of agender and nonbinary” and made “negative and gender-stereotyping comments.” Paxton also allegedly treated the unnamed student complainant “dismissively” and with a “harsh” tone.

Five students in his graduate course reported said that Paxton engaged in “negative and stereotypical comments” about ethnicity and gender, according to the memo. Among other comments, Paxton, who is Jewish, allegedly said that “Jews funded the Revolutionary War,” and that it was “weird” that some female instructors were crying on election night 2016. Paxton admits saying some of these things but says that in each case, there was an explanation. For instance, he says he mentioned the election of 2016 in the context of planning for classes around the 2020 election and some of the feelings that might arise.

Paxton says that no investigator has contacted him for his version of events. DesCamp said that Paxton hasn’t had control of his email or Zoom accounts since his suspension, and that the university has repeatedly ignored their requests to view video recordings of the class sessions in question, to see what he actually said. The university has invoked student privacy rights in withholding the video, but Paxton says he has a right to basic evidence in his case.

Paxton hasn’t been able to arrange a faculty hearing to defend himself against the allegations against him before a group of peers, either. This is a crucial part of the due process, according to widely followed guidelines outlined by the national AAUP. The group maintains that professors should only be removed from the classroom pending an investigation when the professor presents an “immediate harm,” after consulting with a faculty body.

‘If Academic Freedom Is to Retain Any Meaning’

“According to the information we have received from Professor Paxton, the classroom speech under investigation was germane to the subject matter,” Greg Scholtz, director of academic freedom, tenure and governance for the AAUP, recently wrote to Pacific, asking about the Paxton case. “Whether it violated standards of professional ethics is a judgment to be rendered, not by administrators or outside attorneys, but by professional peers -- if academic freedom is to retain any meaning at Pacific University.”

In light of Pacific’s treatment of Paxton, the AAUP is “compelled to regard the action against him as a summary dismissal, imposed in serious disregard of AAUP-supported principles and standards,” Scholtz wrote.

Pacific's own Faculty and Governance Handbook says, “If immediate harm to themselves or others is threatened by their continuance, faculty members may be suspended while the termination process takes place.”

Andrew Dawes, chair of physics at Pacific and chair of the campus AAUP advocacy chapter, said that while Paxton’s reported classroom remarks “have no place at Pacific, I am also very concerned about the way the process has played out.”

The correct way forward is to “clarify a code of conduct and embed that in our faculty handbook so that violations lead to clear disciplinary action,” he continued. “If the overall goal of the leadership is to improve the culture and climate for the entire Pacific community, removing faculty and staff through unclear policies and procedures is counterproductive.”

DesCamp represents a second professor at Pacific who says he had a parallel experience to Paxton involving Yruegas. The professor of business, a military veteran diagnosed with service-related physical and non-physical disabilities, who did not want to be identified by name, citing his precarious situation, said that he engaged the federal Equal Employment Opportunity Commission after the university failed to promptly address his complaint about his department chair’s insistence that he reveal personal medical information regarding his request for an accommodation under the Americans With Disabilities Act.

Guilty Until Proven Innocent?

Within days of telling Pacific about his EEOC complaint, the professor said, he was informed that he was in turn being investigated for racism. The allegation stemmed from a meeting with his program’s faculty members, in which he repeatedly asked why certain requirements for students had been changed without his knowledge. Yruegas was present at the meeting, he said. He denied saying or doing anything that could have been interpreted as racist against her or anyone else, but he was told that his tone with Yruegas was inappropriate. An independent investigator also accused him of missing meetings of a diversity committee on which he sits, but the professor said these meetings were scheduled during his classes.

As the ongoing investigation has progressed over the last three-plus months, it's seemed to center on vague allegations of "unprofessionalism" instead of racism, the professor said. Either way, he let his original EEOC complaint about Pacific lapse because he interpreted the university's actions as retaliation and didn’t want to increase his chances of being "stained" by a negative finding against him, however unwarranted. He has since filed a new complaint with the EEOC to address his standing request for an accommodation under the ADA.

Pacific did not respond to a request for comment about the second professor’s complaint.

In limbo, Paxton has lodged his own complaint with the EEOC, citing his age of 61. Pacific may want him gone because he’s senior and relatively expensive, DesCamp said, but he wasn’t ready to retire. Since being suspended, Paxton has been unable to secure employment elsewhere and is suffering professionally and personally. Students have been told he’s suspended pending an investigation, sparking rumors, DesCamp added.

As for Pacific’s treatment of Title IX in this case, DesCamp said, “If there really was a sexual predator working at the university and this is how they deal with him -- offer him a Title IX investigation on the one hand and a severance agreement with money on the other -- that’s abhorrent … [He] should be held accountable.” Paxton isn’t any kind of predator, DesCamp said, so the question becomes, “Isn’t everybody supposed to be innocent until proven guilty?”