Holder imposing broader sexual harassment definition on campuses

May 16, 2013

The federal government, embracing a broader definition of what constitutes sexual harassment, has sent a memo to universities that some First Amendment experts worry could criminalize inoffensive verbal expression on college campuses.

The memo, which was sent to the University of Montana on behalf of the Departments of Justice and Education, purports to correct Montana’s inadequate sexual assault prevention measures and criminal proceedings.

Montana’s existing policy defines sexual harassment as conduct that it is severe, pervasive or disruptive to a person’s work or education. But the federal government’s memo mandates that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’”

They key difference may lie with the word “any.”

The U.S. Equal Employment Opportunity Commission (EEOC) holds that illegal sexual harassment must be frequent, severe or part of a pattern that has created a hostile environment. Comments that aren’t seriously offensive do not rise to the level of harassment, according to the EEOC definition.

But the new memo instructs universities to disregard the standard of a reasonable person when determining whether sexual harassment has occurred. Previously, authorities would consider whether a reasonable person of the same gender as the accuser would have felt harassed under the same circumstances. The federal memo explicitly rejects this standard for universities in determining whether sexual harassment has occurred.

It’s a shockingly low burden of proof for demonstrating sexual harassment, Greg Lukianoff, president of the Foundation for Individual Rights in Education and author of  “Unlearning Liberty: Campus Censorship & the End of American Debate,” argued in an email to The Daily Caller News Foundation.

“This new stand alone definition of harassment is broader than your standard employment definition,” wrote Lukianoff, noting that most workplaces do not define sexual harassment as broadly as college campuses are now instructed to do.

Many public universities have begun hosting “sex week” events during Valentine’s Day week, where students attend lectures about masturbation and pornography, and receive free condoms and sex toys. If any student found these events offensive, he or she would be entitled to take action under the new harassment policies, Lukianoff said.

“Yes, this could be used against ‘sex weeks,’” he wrote to TheDC News Foundation.

The Office of Civil Rights maintains a list of verbal, nonverbal, and physical behaviors that could be considered sexual harassment. The list includes, “writing graffiti of a sexual nature,” “displaying or distributing sexually explicit drawings, pictures, or written materials,” “telling sexual or dirty jokes,” and “circulating or showing e-mails or Web sites of a sexual nature.”

“In short, sexual harassment is defined to include ‘any’ speech or other verbal conduct even if it would not offend a reasonable person, but rather only is offensive from the subjective viewpoint of a hypersensitive person,” Hans Bader wrote for the libertarian Competitive Enterprise Institute. “This casts a cloud over academic freedom and the ability to discuss topics that are offensive to some listeners.”

Bader noted that this runs counter to previous jurisprudence on the subject, which has always tempered accusations of sexual assault with the a need to demonstrate that the conduct was objectively offensive, pervasive or disruptive.

Lynne Bernabei, an attorney and employment discrimination expert, agreed that the memo defined sexual harassment broadly, but said that this wouldn’t violate the First Amendment unless administrators enforced it improperly.

“What they are essentially doing is giving more protection to people who suffer unwelcome sexual conduct than what the law provides,” she told TheDC News Foundation. “It’s not illegal per se — it’s illegal if it’s enforced in a certain way.”

Still, the Department of Justice should be less vague about what activities constitute harassment if it wants the memo to survive legal scrutiny, Bernabei said. ”I think they have to put some more bones on it.”

The standards should and must apply to all universities that receive federal funding, according to the memo. The federal government will consider any failure to implement these standards as a breach of Titles IX and IV of the 1972 Education Amendments and the 1964 Civil Rights Act, respectively.

“The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” the memo’s authors wrote.

The Departments of Justice and Education investigated the University of Montana for mishandling several instances of sexual assault that involved the football team. Their report found that university police discriminated against women who reported being raped by discouraging them from seeking justice. The memo is a result of that investigation, and is intended to improve the university’s sexual assault prevention and response policies.

The university has already consented to implement all the recommendations of the federal government’s memo, said university spokeswoman Peggy Kurh.

“We look at this as an agreement to which we’ve been a party to in the discussion,” she said in an interview with TheDC News Foundation.

Lucy France, the university’s legal counsel, said the policy would be applied uniformly by officials well-versed in the standards.

“Anybody who is going to investigate an allegation will be trained and will understand what sexual harassment is,” France told TheDC News Foundation. “We need to provide examples of what may constitute sexual harassment so people so that they report it and the situation can be stopped.”

Noting the concerns of First Amendment advocacy groups, she stressed that the university planned to implement the new policy without jeopardizing students’ right to free expression.

“We wouldn’t want to violate somebody’s individual rights and we don’t want to chill free speech, and I think we can accomplish the goals without doing that,” she said.

The DOJ did not respond to requests for clarification about its definition of sexual harassment.

Cases: Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes