Holes in a sexual harassment 'blueprint'
June 5, 2013
Los Angeles Times
When the departments of Justice and Education decided last month to promulgate a new "blueprint" for the handling of allegations of sexual harassment on college campuses, they received very little publicity for their trouble. The blueprint was contained in a May 9 letter sent to University of Montana administrators as part of the resolution of a federal investigation into the university's handling of complaints that football players had assaulted female students.
The letter addressed both sexual assault and sexual harassment. But the language about sexual harassment — which includes "verbal conduct" — immediately alarmed defenders of free speech, and now the Obama administration is backing away, at least to some extent, from its own guidelines.
In the initial letter, the two departments rejected the University of Montana's previous definition of sexual harassment as conduct (including verbal conduct) that is "objectively offensive" — meaning that it would be regarded as harassment by "an objectively reasonable person of the same gender in the same situation." Although the letter wasn't a model of clarity, it seemed to suggest that a college or university must punish such "verbal conduct" if even a single, arguably oversensitive, person found it offensive or "unwelcome."
The Foundation for Individual Rights in Education warned that this definition would potentially allow colleges to punish "any expression related to sexual topics that offends any person," from a performance of "The Vagina Monologues" to a classroom lecture on Vladimir Nabokov's "Lolita" to a "sexually themed joke overheard by any person who finds that joke offensive for any reason." The group also argued that the new definition contradicted a 2003 advisory by the Department of Education that harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." That earlier qualification echoed court decisions interpreting the free-speech protections of the 1st Amendment.
The complaints about the new "blueprint" didn't come in a historical vacuum. In the 1980s and '90s, many educational institutions promulgated policies against harassment based on sex, race and other characteristics that were absurdly overbroad (one banned "inappropriately directed laughter") and applied in unjust ways. Some of these policies have been overturned by the courts. In a 2001 case from Pennsylvania, a federal appeals court ruled that even public schools may not adopt overly broad anti-harassment policies that punish or deter the expression of opinion. Writing for the court, Judge Samuel A. Alito Jr. (now a Supreme Court justice) said: "There is no categorical 'harassment exception' to the 1st Amendment's free speech clause."
Last week the Department of Education responded with an email sent to an unnamed citizen who had complained about the policy. The email — not very persuasively — argued that the May 9 letter "did not create any new or broader definition of unlawful sexual harassment" under federal civil rights law. It said that sexual harassment is not prohibited unless it creates a hostile environment — that is, "sufficiently severe, pervasive or persistent such that it denies or limits the student's ability to participate in or benefit from the school's program." Finally, the email emphasized that "schools must formulate, interpret and apply their rules in a manner that respects the legal rights of students and faculty, including the 1st Amendment."
That's certainly a welcome statement, although it leaves some questions unresolved, including whether and under what circumstances colleges may punish an act of sexual harassment that doesn't contribute to a "hostile environment." The statement is also murky about the relative importance of "objective" and "subjective" factors in determining whether a hostile environment exists. Those matters need to be addressed in a new "blueprint" that is both clearer and more sensitive to the 1st Amendment than the first effort. Sexual harassment on campus is a serious problem, but it can be addressed without abridging free speech.