Federal Slowdown: Departments of Education and Justice Stall Approval for New University of Montana Sexual Harassment Policy

September 10, 2013

WASHINGTON, September 10, 2013—The University of Montana’s new sexual harassment policy, adopted in late August shortly after the start of classes, does not contain the broad definition of “sexual harassment” that sparked months of national criticism led by the Foundation for Individual Rights in Education (FIRE). Drafted in consultation with the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ), the new policy defines sexual harassment more narrowly and promises to comply with “free speech requirements for students and employees.”

Troublingly, however, the Departments have thus far failed to officially approve the policy. The agencies’ approval is required by the settlement agreement signed with the university this past May, which states that “[i]t is the intent of the parties that the revised policies, procedures, and internal guidance be adopted no later than July 15, 2013.” But nearly two months after this deadline—and well into the academic year—the University of Montana’s policy remains without federal approval.

The new policy suggests a significant departure from requirements issued by the Departments earlier this year following a joint investigation into the University of Montana’s sexual misconduct policies and procedures. In May, the agencies announced a settlement agreement with the university that included a breathtakingly broad definition of sexual harassment. Proclaiming the settlement to be a “blueprint” for campus sexual harassment policies nationwide, OCR and DOJ stated that sexual harassment must be defined as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (that is, speech). The agencies also explicitly rejected the use of a reasonable person standard in determining whether conduct constitutes sexual harassment.

“FIRE is cautiously optimistic that the University of Montana’s new policy represents a departure from the frighteningly overbroad standards the Departments of Justice and Education announced this May. Montana’s policy defines harassment more narrowly than the blueprint, resuscitates the ‘reasonable person’ standard, and consistently emphasizes both free speech and academic freedom. All it needs is official approval,” said FIRE President Greg Lukianoff.

Joined by civil liberties organizations and distinguished civil libertariansnational commentators,First Amendment expertseditorial boards, and even Senator John McCain, FIRE has pointed out that the “blueprint” definition of sexual harassment contradicts longstanding legal precedent from federal courts—including the Supreme Court of the United States—and endangers speech protected by the First Amendment.

In contrast to the “blueprint,” the new University of Montana policy states that while sexual harassment “can include” unwelcome speech of a sexual nature, sexual harassment must involve an abuse of power or must create a “hostile environment” to be prohibited. Only conduct that is “sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive” to restrict a student’s participation in university activities will constitute hostile environment harassment.

While an improvement from the “blueprint,” the new policy still poses First Amendment concerns. The policy’s definition of “discrimination” includes “treat[ing an] individual differently” on the basis of 17 different characteristics, including an individual’s “political ideas.” This definition could classify protected speech—for example, satirizing fellow students’ political beliefs—as “discrimination.” Further, in encouraging students to report harassing behavior, the policy suggests that students may secure no-contact orders and changes in living arrangements on the basis of expression that does not meet the standard for hostile environment harassment, including protected speech. Without definite, published standards for granting such orders, this is likely to prove legally problematic.

“The University of Montana’s new policy is not perfect, but it is significantly clearer and more cognizant of student and faculty expressive rights than the federal government’s May directive. That’s why the Departments’ failure to approve it in a timely manner is concerning,” said FIRE Director of Legal and Public Advocacy Will Creeley. “FIRE calls on the Departments to approve the new policy, retract the blueprint, and issue new, clear guidance that follows Supreme Court precedent and mandates a constitutional definition of sexual harassment, lest other institutions mistakenly believe they must adopt the blueprint’s illiberal restrictions. Colleges and universities have a moral and legal obligation to prohibit sexual harassment—but doing so does not require sacrificing core civil liberties.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:

Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org
Will Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; will@thefire.org

Schools: University of Montana Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes