The Clash Between Free Speech and Sexual Harassment on the American College Campus

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t was on a warm spring day in Missoula, Montana when Lucy France received the email. As general counsel to the University of Montana, France had been cooperating with the Departments of Justice and Education for the past three months regarding an investigation into the University’s handling of cases of sexual harassment and sexual assault.

On May 9, 2013, the departments sent an open letter to France and the University’s president, Royce Engstrom, outlining the findings of their compliance review.

“I looked at findings from other schools,” France said, “and these were pretty extensive.”

The 29-page letter from the DOJ’s Civil Rights Division and DOE’s Office for Civil Rights (OCR) details how the University should go about changing its policies to better respond to and prevent sexual harassment on campus.

The letter, which accompanied a voluntary resolution agreement adopted by the University the day before, officially ended the government’s year-long inquiry (France became legal counsel in February). The resolution agreement came in two parts: the University must take aggressive steps to alter the attitude toward sexual harassment and assault on campus, and the University’s Office of Public Safety must overhaul its approach to reports of sexual assault, following the government’s claim that the office failed in its response to allegations of abuse on campus and, in so doing, practiced sex discrimination and gender stereotyping.

But it’s the letter itself that has touched off a firestorm of responses.

The letter from the DOJ and DOE states:

“[T]he University’s Sexual Harassment Policy … states that conduct becomes sexual harassment when it is ‘sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or to receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.’ As explained above, this is the standard for hostile environment — not the definition of sexual harassment. Sexual harassment is unwelcome conduct of a sexual nature.”

For awhile, two types of sexual harassment have generally been recognized under the law: quid pro quo, when a boss requires sexual favors in exchange for an employee’s promotion, for example, and hostile environment, when behavior becomes so “severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities,” according to the 1999 U.S. Supreme Court case Davis vs. Monroe County Board of Education, which defined the term “hostile environment” as it relates to academic settings.

“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, vice president of the Foundation for Individual Rights in Education (FIRE), a nonprofit organization aimed at preserving individual liberties on college campuses across the nation. “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.”

But Susan Carle, a law professor at American University’s Washington College of Law, explained that the whole “quid pro quo” status of sexual harassment is passé, that now, there is hostile environment on the one hand and on the other “a change in the conditions of employment” or “tangible employment action,” replacing quid pro quo.

Regardless, the departments’ position that sexual harassment could be divorced from hostile environment (and not be employment-related) has some worried the government has redefined what sexual harassment means.

“They’ve created a new form of sexual harassment that doesn’t rise to the level of hostile environment sexual harassment, which I believe doesn’t exist and I don’t think it can exist in a constitutional sense,” Shibley said.

Carle, too, disagreed with how the departments were defining the term “sexual harassment.”

“I personally think they’re wrong,” she said about the departments’ definition. “I don’t think all ‘unwelcome conduct of a sexual nature’ is illegal sexual harassment. I do not.”

The Subjective Standard

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esides the issue of hostile environment, there is something else in the letter that has some First Amendment scholars in an uproar.

The departments’ letter goes on to say:

“[The University’s Sexual Harassment Policy] improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. … 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.’”

“So for a while, the lower courts were really confused and they were trying to figure out whether sexual harassment — what was offensive — was defined based on some sort of abstract, mythical human being, probably gendered male on the one hand, or whether you really looked at how it felt to the person who is experiencing the harassment, which often, but not always, was gendered female,” Carle said. She explained how in Davis, the majority opinion held that “whether something is offensive should be determined based on the evaluation of a reasonable person in those circumstances,” she said. “So it was sort of a combination of the objective and subjective standard.”

But Shibley argues that the introduction of the subjective standard means that rather than seen from the eyes of a reasonable, objective person, an action could be viewed subjectively by an unreasonable person, who might label it sexual harassment.

What is most concerning to Shibley is something that appears on the first page of the letter. It says the accompanying agreement will “serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” While the agreement is only binding with the University of Montana, the letter makes it clear that its message affects all institutions of higher education in the U.S.

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.”

By apparently removing the “objectively offensive” requirement and disassociating the “hostile environment” status from sexual harassment, some say the government has redefined the term “sexual harassment” in such broad terms that few actions could escape its reach.

In an article about the University of Montana findings for the Student Press Law Center, Frank LoMonte writes, “It’s conceivable that just seeing an unwanted sexual message on a movie poster, a T-shirt, or the side of a bus could fit the Department’s elastic notion of ‘harassment.’”

Because of the vagueness of the term “unwelcome conduct of a sexual nature,” Shibley and others have pointed out that telling sexual jokes, being assigned the book Lolita, even asking someone out on a date could be seen as “unwelcome conduct of a sexual nature” in somebody’s eyes, even those of an unreasonable person.

“This is effectively a mandate from the federal government that virtually every university in the United States adopt speech codes that are unconstitutional on public campuses, and on private campuses violate many colleges’ promises of free speech,” Shibley said.

France, the general counsel at the University of Montana, remains skeptical.

“I don’t take the letter necessarily as telling us how to define [sexual harassment]. Just do it right, is essentially what they’re saying,” she said.

“To some extent, from what I’ve viewed of FIRE, and I’m not being critical, I understand where they are, but … in some of the public statements that have come out, I think they’ve conflated those [points] and sort of confused the issues,” France said. “Some of the things that I’ve seen reported have been that the University has agreed to prosecute students and violate their First Amendment and Fourteenth Amendment rights and if anybody makes a joke that they’re going to subject to sanctions, and that’s just not true. That has no basis in fact.”

The Policy and the Press

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n January 24, 2013, The Kenyon Collegian, the student newspaper of Kenyon College in Gambier, Ohio, published a front-page article reporting on the indictment of a former student on charges of rape and gross sexual imposition.

The backlash was immediate and fierce.

Decrying the decision to publish as a “sensational smear campaign,” “slipshod excuse for journalism” and “blatant attempt to vilify” the suspected student, four of the seven writers of letters to the editor, all male, expressed outraged at the article.

While the publication of the article prompted a campus-wide debate and soul-searching on the issue of sexual assault, it was still derided in letters at the time as “egregious,” “inflammatory” and “distasteful.”

“I personally take offense,” one of the letters to the editor read.

The student appeared to take offense at what he considered “unwelcome conduct of a sexual nature” by the newspaper, and in the wake of the University of Montana findings, one is tempted to wonder whether the student could have filed a complaint.

“If that person reading the article finds it to be unwelcome or something in there offensive, certainly there would be a risk of that publication being reported as a sexual harasser,” Shibley said, in speaking hypothetically about the findings letter’s impact. “So it does compromise freedom of the press along those lines.”

Eugene Volokh, a law professor at the University of California Los Angeles School of Law, and noted First Amendment scholar, agrees with Shibley’s assessment.

“Every instance of such material of a ‘sexual nature,’ under the government’s approach, would be ‘sexual harassment’ and would need to be banned,” he wrote on his blog The Volokh Conspiracy on May 13. Volokh declined to be interviewed due to time constraints.

Alan Howard, professor of law at the St. Louis University School of Law, and also an expert on the First Amendment, had a different response to the letter from the Departments of Justice and Education.

“I don’t see why there’s anything in that letter that should make student newspapers pause or be concerned about whether … they should run afoul of civil rights laws by their publishing articles on sexual harassment,” he said.

While the publication of the article in the Kenyon newspaper was approved by the administration, Shibley warned that this might not always be the case.

“Certainly there’s a lot of incentive there for colleges to tell newspapers not to cover sexual topics or topics of gender and to leave those out completely to reduce their liability and the chance of some sort of Title IX investigation,” he said, referring to a section of the Education Amendments of 1972 that bans sex-discrimination in the educational environment.

“The chilling effect that could be created by this is also pretty substantial.”

Greg Lukianoff, the president of FIRE, explained that that the repression of speech has already taken place in this regard.

“The stifling effect of these codes isn’t theoretical,” he wrote in an op-ed for The Wall Street Journal on May 16. “In 2011, the University of Denver suspended a professor and found him guilty of sexual harassment because his class discussion on sexual taboos in American culture (in a graduate-level course) was considered too racy.”

On May 29, the Department of Education’s Office for Civil Rights issued a statement responding to a barrage of inquiries about how the policies would impact free speech. Standing by the University of Montana findings, the statement restated that OCR’s policies are supported by the Constitution and existing law.

“The agreement and letter are entirely consistent with the First Amendment, and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV,” it said, Title IV referring to sections of the Higher Education Act of 1965, which outlines disciplinary action for alleged sexual assaults.

“In preventing and redressing discrimination, schools must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including the First Amendment. We will support the University of Montana in its efforts ensure [sic] that any policies it adopts will comply with the Constitution.”

Shibley was not convinced.

“They can say it’s consistent with the First Amendment, but it isn’t,” he said.

“There is no way to reconcile a policy that lacks objectivity, that makes all expression that is unwelcome and is sexual in nature harassment, and say that squares with the First Amendment. It simply doesn’t.”

The Coming Months

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fter the resolution agreement was adopted on May 8, the University of Montana has been moving forward with updating its Sexual Harassment Policy to comply with the government’s standards.

“I’m looking to the proactive steps that we’re going to take to make the policies clear and consistent with existing law,” France said. She said the intent of the government’s letter was not to suppress any sort of individual rights but for the University to recognize that “sexual assault is a problem still in society and we need to do a better job of recognizing it and stopping it, so everybody has an equal chance to get their education,” France said.

Shibley countered that regulating speech, which could be characterized as sexual harassment, leads to a slippery slope.

“Sex and gender are some of the core political issues that we see fought out in congress and state legislatures, and people feel very strongly about them and that’s why it’s so risky to turn any kind of speech that could be unwelcome and offensive to somebody, even somebody unreasonable, into sexual harassment, because it really gets to core political speech that’s supposed to be and I believe is the most heavily protected under the Constitution,” Shibley said.

But France said there was no way the University would adopt a code that infringes upon students’ First Amendment rights.

“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.”

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.

The draft notes that such conduct as, “sexual or ‘dirty’ jokes,” and “displaying or distributing sexually explicit drawings, pictures and/or written material,” can constitute sexual harassment. But the draft also includes an entire section headed “Free Speech and Academic Freedom,” which reads:

“This policy shall not be construed to restrict constitutionally protected expression, even though such expression may be unpleasant or even hateful. Constitutionally protected speech and traditional notions of academic freedom are valued in higher education. These ideals help to create the stimulating and challenging learning environment which should characterize higher education. In the spirit of a true university environment, individuals are encouraged to invite, rather than inhibit, discourse on ideas.”

Shibley believes students coming back to college next year may see significant changes to the definition of sexual harassment in their student handbooks.

“I think it’s inevitable that a lot of colleges will adopt those regulations. I think a lot of them are still digesting them right now but I would expect in the fall for a lot of students to come back to universities that have adopted these regulations in order to avoid what they probably see as an inevitable investigation if they don’t,” he said.

FIRE is currently looking at all options to counteract the government’s policies, whether through lobbying legislators or taking legal action.

“Everything’s on the table because this is really a matter of whether we’re going to have free speech on campuses from here forward,” Shibley said. “I don’t think this is going to stand. It’s an obviously unconstitutional mandate. I think they’ve made a big mistake and I think they are soon going to find out how big a mistake that was.”

A Public Discourse

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ut the OCR’s statement on May 29 spoke to a different concern than the hubbub over the subjective and hostile environment standards, a concern that highlighted the serious and relevant nature of sexual harassment and sexual assault on college campuses.

“It is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment,” the statement read.

“It seems to me that what they’re trying to say is that their intention was to get students to report sexual harassment,” Shibley said before the statement was issued about a similar memo obtained beforehand. “However, what they’ve defined as sexual harassment isn’t actually sexual harassment. It could just be things that are annoying that you don’t like.”

“It’s not sexual harassment unless it’s severe, pervasive, and objectively offensive,” he added. “If not, it’s just words you don’t want to hear or images you don’t want to see.”

And many students at Kenyon College did not want to hear those words or see that image of a friend and former classmate of theirs who had been indicted for sexual assault.

But there was one of those letters to the editor published in the Kenyon newspaper that recognized this tension.

While the letter addressed how serious conversations about sexual assault and sexual harassment could be held, the sentiment could be extended to how colleges will now handle potential reports of sexual harassment triggered by anything from dirty jokes, Nabokov’s Lolita, or, for example, an article published in The Kenyon Collegian. The unsigned letter reads, “Sexual misconduct is difficult to discuss. Regardless of whether you’re a direct victim of such crimes or not, conversations about sexual assault, abuse, harassment, etc., make people tense and uncomfortable and, unfortunately, are often easier to ignore than they are to consider.” The writer then continues, offering a question that the government, lawyers, administrators, and students must now ask themselves. “That said, is the difficulty of having such conversations truly reason enough to ignore the discourse altogether?”