OCR's Logical Fallacy
July 10, 2013
Dogs are four-legged creatures, right? Does that also mean that all four-legged creatures are dogs? Of course not! That is, unless you work for the Department of Education’s Office for Civil Rights, in which case apparently it does.
FIRE and other critics of the May 9 federal Title IX compliance “blueprint” strenuously object to the blueprint’s expanded definition of sexual harassment. Specifically, in its letter to the University of Montana detailing the university’s failure to comply with Title IX, the Departments of Education and Justice wrote:
[T]he University’s policies conflate the definitions of “sexual harassment” and “hostile environment.” Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment.
When FIRE and other free-speech advocates called this what it is—a groundbreaking redefinition of sexual harassment that encompasses a tremendous amount of protected speech—OCR issued a statement saying that its definition of sexual harassment as “unwelcome conduct of a sexual nature” was “[c]onsistent with OCR’s previous, well-established guidance.”
This is where the four-legged-creature analogy becomes relevant. What OCR was referring to in its statement is a sentence from its 2001 Revised Sexual Harassment Guidance which does, in fact, state that “sexual harassment is unwelcome conduct of a sexual nature.” I recently had occasion to re-read that Guidance, and in the course of that reading I realized that OCR has committed (either knowingly or unknowingly) a major logical fallacy in calling that sentence a definition of sexual harassment. In its broader context, that statement is a description (“dogs are four-legged creatures”), not a definition (“all four-legged creatures are dogs”). In the 2001 Guidance, that sentence is part of a paragraph explaining why sexual harassment is covered by Title IX even though Title IX only explicitly refers to discrimination and does not actually mention harassment. According to the Guidance, the fact that sexual harassment is unwelcome conduct of a sexual nature is one of the characteristics that brings it within Title IX’s purview. Here’s the full paragraph:
Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student can deny or limit, on the basis of sex, the student's ability to participate in or to receive benefits, services, or opportunities in the school's program. Sexual harassment of students is, therefore, a form of sex discrimination prohibited by Title IX under the circumstances described in this guidance.
So what OCR said in 2001 is that all sexual harassment is unwelcome conduct of a sexual nature. This is true. If something is sexual harassment, it is also unwelcome conduct of a sexual nature. But that does not mean that all unwelcome conduct of a sexual nature is also sexual harassment. OCR may be saying that now, but it wasn’t saying that in 2001. OCR needs to stop pretending that it was.