Email Scandals, Law Professors, Law Schools, Pornography

A 'Beadgate' Update: Did Drexel Really Have To Investigate The Law Professor Who Accidentally Sent Porn To Her Students?

Here's the argument in favor of investigating a law professor's accidental discharge of pornography to her students.

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Our story from last week about a law professor who accidentally sent anal-bead porn to her students has gone viral. As you can see from the many updates to our original post, it got picked up all over the place, from Gawker to the New York Post to the Huffington Post to the Daily Mail.

What happened after Professor Lisa McElroy sent out that ill-fated email? Her employer, the Thomas R. Kline School of Law at Drexel University, put her on administrative leave, handing over her teaching duties to a colleague. The law school then launched an investigation of the incident, as explained in this statement released by Drexel University:

Drexel has been made aware of an email that a professor sent to a class of law students and erroneously included a link to inappropriate material. According to federal law and the University’s policies and procedures, Drexel is required to initiate fact-finding for all reports of inappropriate behaviors of a sexual nature that may impact members of our community.

As part of these policies and procedures, an employee may be put on administrative leave — which is not punitive — during the investigation.

In my post, I sided with Professor McElroy. I noted that she made an innocent mistake that any one of us could have made — “there but for the grace of God go I” — and criticized Drexel University’s response as an overreaction.

But that was my gut reaction as someone with no expertise in education law. Was I correct?

Yesterday I discussed what Drexel students are calling “Beadgate” with Professor Michael A. Olivas of the University of Houston Law Center, one of the nation’s leading experts in education law. Professor Olivas, who serves as Director of the Institute for Higher Education Law and Governance at UH, literally wrote the book (affiliate link) on the law of higher education.

Professor Olivas began our conversation by noting that this incident must be viewed against the backdrop of Title IX, which aims to ensure gender equality in education. Title IX provides, in part, that “[n]o 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.”

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Title IX has many facets, Professor Olivas explained. This incident falls under promoting an appropriate “learning environment.” Schools are required to adopt policies and procedures to make sure they comply with Title IX’s requirements. For example, Drexel University has adopted a Sexual Harassment and Misconduct Policy, part of the university’s effort to implement Title IX.

For many years, according to Professor Olivas, a large number of colleges and universities did not adequately understand or enforce Title IX. Some administrators worried about infringing on academic freedom, while others took a “boys will be boys” attitude towards Title IX concerns. But in the wake of increased public attention to the problem of sexual assault at colleges and universities, the Obama Administration stepped up enforcement of Title IX. As a result, institutions of higher learning now take Title IX issues much more seriously — which may explain why Drexel decided to launch an investigation into Professor McElroy’s email accident.

Taking as true what has been reported about “Beadgate” so far, Professor Olivas expressed sympathy for Professor McElroy: “This is a particularly difficult matter because it was so clearly inadvertent. It was not characteristic of the professor. We have to distinguish between true uses of social media to harass people or put them down and innocent conduct. I don’t think an entire academic career should be cut short or harmed for what is on its face a minor transgression and an isolated incident.”

At the same time, according to Professor Olivas, Drexel acted properly by initiating an investigation.

“I think they were obligated to investigate,” he said. “Maybe not in a technical legal sense, but if I were their general counsel, I would have ordered an investigation.”

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So Drexel didn’t have any discretion to overlook this isolated, accidental, de minimis incident of porn provision?

“The way you find out if you had the discretion to ignore something is when the federal government brings a Title IX charge against you,” he said. “And how can you prove that there was nothing improper if you don’t undertake an investigation? Professors accused of improper conduct will often claim inadvertence or say ‘I didn’t know.’ You can hardly blame universities for being aggressive in policing these boundaries when colleges are being sued by the government for not adequately such investigating issues.”

“Universities need to police ourselves,” he added. “If we take these issues seriously, it will give us credibility for the cases when we mess up.”

Turning to the subject of how Drexel’s investigation should be conducted, Professor Olivas argued that it should be handled by professors rather than administrators.

“Universities need to let faculty members judge these matters,” he said. “By the time someone becomes a provost or president, they’ve been out of the classroom a long time. These cases need to be judged by people closer to the classroom. Otherwise there can be overaggressive or uneven enforcement of these rules.”

Professor Olivas expressed confidence, at least based on what we currently know, that Drexel’s investigation will ultimately clear Professor McElroy of wrongdoing and that she will keep her job. (She received tenure in 2013.)

“Facts matter,” he said. “Context matters. The real rule is germaneness. I could imagine a sociology class where looking at or discussing pornography might be appropriate. We have to be sure that what we’re doing is appropriate under the circumstances. But in this case, what happened was clearly an accident, done without any malice or intent to harass.”

“I don’t think she will be fired, and I don’t think she should be fired,” Professor Olivas concluded. “But she needs to be more careful — as do we all.”

P.S. If you’ve enjoyed Professor Olivas’s insights, check out his radio show, The Law of Rock and Roll, on the New Mexico NPR station KANW, which is on the drive-in time (Fridays, 8:20 a.m. Mountain Time Zone), 89.1 FM. You can tune into KANW online by going to the station URL and listening to the show live (at NOW PLAYING—mp3): http://kanw.com/schedule/kanw.

UPDATE (4/12/2015, 8:00 a.m.): For additional thoughts on Title IX enforcement, see Tamara Tabo.

Title IX Policy [Drexel University]
Michael A. Olivas [University of Houston Law Center]
The Law And Higher Education: Cases And Materials on Colleges in Court Third Edition [Amazon (affiliate link)]

Earlier: Law Professor Who Sent Anal-Bead Porn To Her Students Now Under Investigation

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