As sexual harassment ‘blueprint’ restricts verbal conduct: Things Not To Say On Campus

By June 6, 2013

by Alexandra Petri

The Washington Post

 

“Verbosity,” as Dan Quayle allegedly said, “leads to unclear, inarticulate things.”

A 47-page open letter sent to the University of Montana by the Office of Civil Rights (OCR) at the Department of Education and the Department of Justice in May has been generating quite a bit of controversy. In response to a series of mishandlings of sexual assault cases on the university’s campus, the OCR set forth new, broad guidelines for what constituted sexual harassment, describing them as a “blueprint” for colleges nationwide.

This is at best, badly written, and at worst, as the campus-individual-rights organization FIRE suggests, a disturbing expansion of suggested campus speech restrictions.

The new guidelines redefine sexual harassment, saying: “Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. A university violates Title IX and Title IV if: (1) a student is sexually harassed and the harassing conduct is sufficiently serious to deny or limit the student’s ability to participate in or benefit from the program (i.e., the harassment creates a hostile environment); (2) the university knew or reasonably should have known about the harassment; and (3) the university fails to take immediate effective action to eliminate the hostile environment, prevent its recurrence, and address its effects.”

(Bold mine.)

Verbal conduct? Isn’t there another word for that? It’s on the tip of my tongue. Oh yes– “Speech.”

The “blueprint” also rejects the University’s “reasonable person” standard for sexual harassment, which makes things even more confusing.

Good news for English majors — the reading list just got a lot shorter. The list of books to which an unreasonable person might object because of their “verbal conduct” when it came to sex is — that’s pretty much the syllabus right there.

Goodbye, pretty much every work of literature ever. “The Great Gatsby”? “At his lips’ touch she blossomed for him like a flower”? I don’t think so. Knock that off the books. Also, ew.

“Ulysses.” I’m pretty sure Leopold Bloom is engaging in onanism during that one scene at the public baths, but then again, who can really tell through all that prose? It was a pain to read anyway! “Yes Yes I will Yes”? No, no, we won’t, nope.

“The Sound And The Fury.” Also a pain to read. Definitely contains incest or something, although it’s hard to tell what’s going on half the time.

Forget “The Vagina Monologues,” “The Color Purple,” “Remembrance of Things Past.” Forget history (too much sex there, and such unenlightened attitudes towards women). Forget pretty much anything by the ancient authors, especially the “Iliad.” What is Zeus doing in Chapter 9? Isn’t that his sister? Forget Ovid’s “Metamorphoes,” or, as I like to call it, “Zeus Has Fun With Bestiality.” Forget D. H. Lawrence. “Lady Chatterly’s Lover”?

Maybe that guy who replaces all the plots of classic literature with zombies can get a job going through these great books and removing all the allusions to unwelcome conduct of a sexual nature with zombies.

Instead, we’ll just read that insulation manual recommended by the Common Core over and over again, extracting new insights that we missed when it was mandated in high school.

As FIRE’s Will Creeley told me via e-mail: “In addition to classifying protected speech as harassment, a deeply problematic result in and of itself, the broad definition renders virtually every student and faculty member on campus guilty of sexual harassment prohibited by Title IX; constrains permissible discussion of sexual and gender-based topics to only that speech deemed acceptable by the most unreasonably hypersensitive student on campus; trivializes real harassment and mandates the waste of institutional resources on mandatory investigations of any complaint of subjectively offensive sexual or gender-based speech, eliminates any possible conception of academic freedom as we now know it; chills campus speech; and empowers university administrators to investigate and potentially punish merely unwanted student or faculty speech.” But other than that, it’s a really great approach to dealing with the serious problem of sexual assault and harassment on campus.

Look, sexual harassment is a serious problem. But labeling literally everything that is sexual and unwelcome as sexual harassment is not the solution, or we would have shut Michael Douglas up a long time ago. Some behaviors are obnoxious, grating, and ugly, but not against the law. Consider the Westboro Baptist Church, or Nickelback. This standard is palpably ridiculous, going far beyond the one set by the Supreme Court, and it shouldn’t just bother people who are worried they’ll have to put their “SHE WANTS THE D” shirt back in the bottom drawer, where, quite frankly, it belonged in the first place. It is vital that campus administrators take sexual assault and sexual harassment seriously. But is diluting the label of sexual harassment really the way to go?

Sexual harassment is a strong term that is meant to denote something severe, and defining it as unwanted sexual “verbal conduct” that does not have to meet any kind of objective standard — but still demands an investigation, could merit disciplinary action even before that investigation is concluded, and will still wind up on your record forever — seems like a ham-fisted approach that is definitely chilling to speech.

I realize we aren’t living in an epidemic of over-reporting of sexual assault and unwanted sexual conduct — in fact, the opposite. And the impulse to encourage people to speak up when they are met with unwelcome advances is a good one. But “sexual harassment” is a specific category of behavior that is prohibited, and cavalierly tossing “verbal conduct” in a heap of prohibited behaviors seems like trying to kill a grizzly bear by nuking the whole mountain. The grizzly is serious trouble. But that’s not how you get rid of one — not if you don’t want to destroy all kinds of lovey and necessary types of speech.

The OCR has subsequently clarified (or muddied, depending on your opinion) its guidelines, saying that they are “entirely consistent with the First Amendment” and that they “have always maintained that the civil rights laws OCR enforces must be interpreted in ways that are consistent with constitutionally protected First Amendment rights.”

This isn’t quite what the original blueprint said, and if they mean this about First Amendment rights, they really need to be a little more explicit about it. You can’t just say something is consistent with the First Amendment and then it magically clarifies itself so that it is so.

The follow-up letter from the OCR explains: “Furthermore, as we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment. … OCR and DOJ’s May 9 resolution agreement and letter to the University of Montana require that the University take steps to prevent sexual harassment from creating a hostile environment for any student, and to eliminate and redress any hostile environment that arises. 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.”

Did it not? If that wasn’t their intent, they really should explain it a tiny bit more clearly, before colleges around the country start adopting these guidelines. The response seems to be that the new, broader definition of “sexual harassment” isn’t prohibited by Title IX unless it creates a hostile environment, but requiring universities to report unwelcome speech as sexual harassment creates a pretty chilling effect on speech, even if no other disciplinary action follows.

By all means, tell administrators and other university officials when others’ conduct makes you feel uncomfortable. Colleges are supposed to have your back. But there’s a pretty hefty line between telling your dean that there’s a creep on your hallway and reporting him for sexual harassment, which has to meet a stiffer standard — one that most college campus conduct only meets if it creates a hostile environment, since students typically aren’t in positions of power over each other, and one, as OCR noted in its follow-up letter, that has to take into account a mixture of objective and subjective factors — because it has a stiffer penalty and can lurk on your record forever.

You have a right to feel safe and not to be discriminated against by gender. But you don’t have the right not to be offended. The proper answer to offensive speech is better speech, and more of it, not to shut the speaker down completely. The blueprint is so vague that almost anything you say can be used against you — “unwelcome verbal conduct of a sexual nature” could just as easily be a Slut Walk trying to take back a campus as one of the exhibits of fratty jerkishness that the Slut Walk sought to respond to.

Is speech speech, or is it “verbal conduct”? Speech is a vital right guaranteed by the First Amendment. Verbal conduct is something you should stop right now, Karen, because you are making Lisa uncomfortable.

What a weird newspeak-y way of describing speech.

I hope they clear it up.

This isn’t legally binding on anyone but the University of Montana right now, although given the Title IV and IX enforcement authority that the OCR invokes in its open letter, it would be hard to judge colleges harshly for fearing that they might be penalized for failing to live up to the new standard.

This is, at best, a careless and poorly thought-through definition where someone failed to make the distinction between sexual harassment that creates a hostile environment (definitely punishable under Title IX) and unwelcome behavior that falls short of that standard (still icky, but not against the law.)

Vague speech is the enemy of free speech. Harassment is a serious term. It has to be carefully defined so it can carry all the weight it should. And this is not the way to do it.

View this article at The Washington Post.