Penn Abuses Its Sexual Harassment Policy

Yet another story of the constant abuse of sexual harassment regulations is unfolding on one of America’s most prestigious campuses—the University of Pennsylvania, located right in FIRE’s backyard of Philadelphia. It seems that two adult students in a dormitory at Penn decided that they would engage in sexual activity, sans clothing, while pressed up against the glass of their dorm room window. Apparently this behavior went on for at least three days, and on the third day a student from a neighboring dorm took a photo of the couple and posted it on his Penn website. The student who captured and posted the evidence of this indecent exposure has now been charged with sexual harassment.

Penn’s main student newspaper, the Daily Pennsylvanian, has the most comprehensive coverage right now, including the picture itself, which is not particularly graphic and is not obscene but does show someone’s buttocks quite clearly. FIRE cofounder Alan Charles Kors is representing the accused student photographer in his capacity as a Penn professor, although he is not involved in any way with FIRE’s separate investigation into the case.

There are so many reasons that this photographer’s deed is clearly not sexual harassment that there is hardly the time to list them all here, so I will try to hit the high points. First and foremost, taking a picture of people engaged in a public sexual display does not meet the legal definition of harassment, or indeed virtually any illegal definition of harassment (which abound on university campuses). In order to be harassment, behavior must be severe or pervasive, and taking a snapshot or two simply is not either of those. Time and time again, FIRE explains that harassment of any kind is extreme behavior—that’s what makes it “harassment” and not just “being annoying.” Yet administrators at many colleges and universities, including apparently the University of Pennsylvania, often use the charge of harassment to punish any expression they don’t like. This makes a mockery of harassment and dangerously trivializes real harassment. After all, branding someone a harasser ceases to be at all meaningful when what you really mean by “harasser” is “a guy who took of picture of me engaging in an illegal act of public exposure.”

In addition, whatever expectation of privacy this couple might have had in having sex in a dorm room was pretty much abandoned when they chose to do it three days in a row while pressed up against an open window, in daylight, and in clear view of a building across the way. In the words of FIRE Director of Legal and Public Advocacy Greg Lukianoff, “This might be a different case if the photos were taken using a telephoto lens and the students were not pressed right up against the window, but as adults they should have known that they had no right of privacy having sex where everyone could see them.” And do we need to remind people that public exposure is against the law—making this picture, at least on one level, evidence of a crime?

One final note: in this Daily Pennsylvanian article, I am quoted as saying that “[a] university...can greatly restrict free-speech rights to nearly any extent under its own guidelines as long as it does not hold itself out as a place where freedom of expression and academic freedom are valued….” Unfortunately, the reporter (I believe innocently) left out some pertinent contextual information—that this statement applies to private universities, not public ones, and that even this varies state by state. In addition, the reporter has me asserting that “a private university has great legal ability to limit rights but will not generally choose to wield it.” If only that were true! What I said was that “[m]ost universities are unwilling to abandon a commitment to academic and other fundamental freedoms, however, since it would destroy their credibility as an educational institution.” They usually won’t abandon it publicly, at least. In private, alas, it is all too often a different story.