Hans Bader in ‘Chronicle': New Blueprint ‘Casts Dark Cloud’

By May 23, 2013

In an article for The Chronicle of Higher Education published today, attorney Hans Bader elaborates on some of the repercussions of the Departments of Education and Justice’s new federal "blueprint" for campus sexual misconduct policies, which defined sexual harassment as "any unwelcome conduct of a sexual nature."Bader, who was formerly with the Department of Education’s Office for Civil Rights, cites several cases in which courts have held that charges of sexual harassment on campuses must include an element of objective offensiveness. Without that element, Bader explains, sex education classes and even attempts at dating are risky. He paraphrases an example from education writer Joanne Jacobs: [I]f a professor discusses a sexual issue, like HIV transmission through anal sex, [] making one of his 500 students uncomfortable … he’s a sexual harasser.If that doesn’t hit close enough to home for college students, consider this insight from Bader:Defining any romantic overture as harassment merely because it turns out to be unwelcome—even if it only occurred once, and was not repeated after its unwelcomeness became known—has dire implications for dating. Since no one is a mind reader, the only way to avoid ever making an "unwelcome advance" is to never ask anyone out on a date. That undermines freedom of intimate association. Bader concludes that in "defining speech as reportable ‘sexual harassment’ even when it does not offend a reasonable person, the Education Department has cast a dark cloud over academic freedom and the ability to debate important issues about sexual morality, norms, and roles that may offend some listeners."Read the rest of his opinion piece at The Chronicle of Higher Education.

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