Can the University of Montana Deliver the Constitutional, OCR-Compliant Sexual Harassment Policy It Promised?
June 21, 2013
by Susan Kruth
Last week in Escalating Registers, Kenyon College student Henri Gendreau took a critical look at the controversy surrounding the Departments of Education and Justice’s “blueprint” for campus sexual harassment policies. Despite the fact that the Department of Education’s Office for Civil Rights (OCR) has explicitly rejected the University of Montana’s standards for campus sexual harassment, UMT administrators remain confident that they can find a solution that works for everyone. FIRE is skeptical, to say the least.
In Gendreau’s article, FIRE’s Robert Shibley challenged the assertion that students can engage in “sexual harassment” outside of the hostile environment context:
“What OCR has actually done here is go sort of another step, and they have defined sexual harassment as ‘unwelcome conduct of a sexual nature.’ What they’re saying is that that’s sexual harassment, even if it doesn’t rise to the level of creating a hostile environment,” said Robert L. Shibley.... “Now that’s new. As far as I know, there’s never been a third kind of sexual harassment that isn’t either quid pro quo or hostile environment; those are the two kinds of sexual harassment.”
Gendreau also talked to Susan Carle, a professor at American University’s Washington College of Law, who remarked on OCR’s rejection of UMT’s requirement that sexual harassment be objectively offensive to a reasonable person:
While Carle believes the definition the departments outline is not “a big new thing,” she added, “they’re definitely making sexual harassment broader in definition than the U.S. Supreme Court would accept.”
UMT General Counsel Lucy France, like her colleague Peggy Kuhr, has interpreted the federal blueprint as a more general requirement that harassment be properly dealt with—not as a requirement that UMT adopt a particular definition of sexual harassment. France is therefore confident that UMT can strike the right balance:
“We will adopt a definition that we feel reflects the current status of the law and addresses sex-based discrimination and we’re not being asked to adopt one or the other,” France said. “Even speech that is offensive, we need to protect. Absolutely.”
But it is unclear how UMT can craft a policy that is both constitutional and acceptable to OCR, when OCR has already refused to accept elements of UMT’s old policy that were constitutionally required. Gendreau reports:
On May 26, the University of Montana adopted a draft of its discrimination policy, which includes a lengthy section on sexual harassment. In it, the draft notes both an objective and subjective standard is applied to determine sexual harassment, and that “a serious incident, even if isolated, can be sufficient,” rather than a hostile environment standard. [Emphasis added.]
This draft already seems to contradict OCR’s blueprint, which unambiguously states:
Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was “unwelcome conduct of a sexual nature” and therefore constitutes “sexual harassment.”
Or are we to understand that both an objective and subjective standard are applied to determine only whether there is a hostile environment? Who knows? FIRE tried to reach UMT’s Equal Opportunity & Affirmative Action Office to obtain a copy of the policy draft so we could see whether the policy included such a specification, but it’s been several days and the office has not returned our call.
To be clear, FIRE encourages universities to maintain policies that are consistent with the First Amendment, even if those policies conflict with OCR’s blueprint. But they should do so purposefully and openly—because OCR’s demands are unconstitutional.
Of course, FIRE will post an update as soon as UMT releases the full policy. In the meantime, check out Escalating Registers for Gendreau’s thoughtful assessment of the blueprint and how it could affect student speech and press.