How the Federal Blueprint Breaks New Ground

By May 24, 2013

The controversial University of Montana findings letter and resolution agreement (together, the “blueprint”) issued by the Departments of Justice and Education two weeks ago have drawn criticism from commentators nationwide. The heat has come from all corners, with UCLA School of Law professor and First Amendment expert Eugene Volokh, former Department of Education attorney Hans Badereditorialboardscolumnistsbloggerscivil libertarians, and many more weighing in on the threat to free speech on campus.

Given the hailstorm of criticism that has followed the feds’ high-profile roll-out for the University of Montana agreement, I’ve been struck by the lack of public support for the shockingly broad definition of “sexual harassment” that the Department of Education’s Office for Civil Rights (OCR) will now require of institutions receiving federal funding. Disappointingly, OCR has gone silent again, just as it did the last time it decided to severely erode student and faculty rights. I encourage folks reading at home to try your luck contacting OCR, because I’m pretty certain that they plan to simply ignore concerns about campus civil liberties until forced by popular demand to do otherwise.

So while we wait for answers from the authors of this “blueprint for colleges and universities throughout the country,” I want to address a question I’ve seen surface in a few comment sections online. A couple of folks have noted that the broad definition of sexual harassment put forth in the blueprint—that is, “any unwelcome conduct of a sexual nature”—closely tracks language contained in OCR’s 2001 Revised Sexual Harassment Guidance. In that document, OCR states that “[s]exual harassment is unwelcome conduct of a sexual nature.”

Given the nearly identical phrasing, I’ve seen a few commenters ask why we’re so concerned. How different is the blueprint released two weeks ago from the 2001 Guidance?

Short answer? Plenty.

For the long answer, let’s review the three central differences.

1. Unlike the 2001 Guidance, the “blueprint” requires the broad definition to be adopted verbatimas university policy.

In describing sexual harassment generally, the 2001 Guidance uses the same formulation found in the new blueprint—but it absolutely does not require colleges and universities to adopt that language, verbatim, as university policy.

In fact, the opposite is true. According to the 2001 Guidance, “Title IX does not require a school to adopt a policy specifically prohibiting sexual harassment or to provide separate grievance procedures for sexual harassment complaints.” Read that again: Not only does the 2001 Guidance not require schools to adopt the broad definition of sexual harassment as a statement of policy, it doesn’t require schools to adopt a sexual harassment policy at all. As long as the institution adopts and publishes “a policy against sex discrimination and grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex,” and as long as that policy and those procedures “provide effective means for preventing and responding to sexual harassment,” the school has fulfilled its obligations under Title IX.

And far from requiring universities to adopt the broad definition of sexual harassment verbatim, as the new blueprint does, the 2001 Guidance grants colleges and universities significant autonomy to draft their own procedures for fulfilling their Title IX obligations, based on their own particular institutional circumstances. The 2001 Guidance provides:

Procedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.

No one-size-fits-all mandate here!

In sharp contrast, the findings letter issued two weeks ago instructs the University of Montana to define sexual harassment in a very specific, very expansive way: “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” In so doing, the blueprint entirely erases the autonomy provided to institutions by the 2001 Guidance.

The findings letter explicitly rejects one of the University of Montana’s previous definitions—stating that sexual harassment is conduct “sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance”—as deficient. (It’s worth noting that FIRE rates this policy as a “green light,” as it presents no threat to protected expression as written. The policy does a fair job of tracking the core elements of the speech-protective definition of harassment in the educational context announced by the Supreme Court of the United States in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).)

The rejection of this University of Montana policy cannot be squared with the deference granted to institutions in the 2001 Guidance. And by proclaiming the University of Montana agreement to be a “blueprint for colleges and universities throughout the country,” OCR and the Department of Justice (DOJ) have fired a warning shot intended to be heard nationwide. To be in compliance with Title IX, the federal government is now on record as demanding that schools specifically adopt the broadest possible definition of sexual harassment as an operable statement of policy. That’s new.

2. Unlike the 2001 Guidance, the blueprint requires a new policy distinction between “hostile environment” harassment and “sexual harassment” more generally.

The second key difference between the 2001 Guidance and the blueprint is related to the first, but important enough to discuss separately.

In rejecting the University of Montana definition of sexual harassment provided above, OCR and DOJ charge that the university has impermissibly merged the definitions of what it characterizes as two separate offenses: “sexual harassment” and “hostile environment” harassment. Here’s the exact passage from page 8 of the findings letter:

The confusion about when and to whom to report sexual harassment is attributable in part to inconsistent and inadequate definitions of “sexual harassment” in the University’s policies.  First, the University’s policies conflate the definitions of “sexual harassment” and “hostile environment.”  Sexual harassment is unwelcome conduct of a sexual nature.  When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment. The University’s Sexual Harassment Policy, however, defines “sexual harassment” as conduct that “is sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.”  While this limited definition is consistent with a hostile educational environment created by sexual harassment, sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.” [Internal citation omitted.]

In other words, the blueprint requires universities to distinguish between “hostile environment” harassment and “sexual harassment” more generally—seemingly creating a broad third category of “sexual harassment,” distinct from hostile environment harassment and quid pro quo harassment. Accordingly, OCR and DOJ reject the University of Montana’s definition, claiming that it only reaches hostile environment harassment, and not sexual harassment writ large.

But this distinction between “sexual harassment” and “hostile environment” harassment is very different from the conception of sexual harassment discussed in OCR’s 2001 Guidance. In 2001, OCR stated:

This guidance moves away from specific labels for types of sexual harassment. In each case, the issue is whether the harassment rises to a level that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex. However, an understanding of the different types of sexual harassment can help schools determine whether or not harassment has occurred that triggers a school’s responsibilities under, or violates, Title IX or its regulations.

The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct. Whether the student resists and suffers the threatened harm or submits and avoids the threatened harm, the student has been treated differently, or the student’s ability to participate in or benefit from the school’s program has been denied or limited, on the basis of sex in violation of the Title IX regulations.

By contrast, sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct. Harassment of this type is generally referred to as hostile environment harassment. This type of harassing conduct requires a further assessment of whether or not the conduct is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex.

Teachers and other employees can engage in either type of harassment. Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment. [Emphases added; internal citations omitted.]

Here, OCR makes no functional distinction between “sexual harassment” among students and “hostile environment” harassment at all. Indeed, OCR states that for students, sexual harassment is hostile environment harassment. So if the University of Montana’s policy impermissibly conflated hostile environment harassment and sexual harassment, as OCR and DOJ charge, then OCR’s 2001 Guidance is guilty of the same.

OCR’s distinction between “hostile environment” harassment and “sexual harassment” more generally is new, and so is requiring schools to make this distinction in their policies.

Why does this new distinction matter for freedom of expression?

Here’s why mandating this new distinction is important—and why it harms student and faculty rights. By separating “sexual harassment” from “hostile environment” harassment, OCR has also separated “sexual harassment” from the set of evaluative factors it uses to determine whether a hostile environment has been created. These factors include whether the conduct affected a student’s education, whether the conduct was part of a pattern of behavior, the identity of and relationship between the individuals involved, the context of the conduct, and more. By reviewing these and other factors to determine whether conduct created a hostile environment—and was thus sexual harassment—schools were able to separate truly harassing conduct from merely offensive or unwanted speech. Indeed, the 2001 Guidance instructed schools to “use these factors to evaluate conduct in order to draw commonsense distinctions between conduct that constitutes sexual harassment and conduct that does not rise to that level.”

Perhaps the most important of these evaluative factors is the requirement that allegedly harassing conduct must be evaluated from an objective, “reasonable person” standpoint. But under the blueprint, reference to this reasonable person standard may no longer be used to determine whether or not conduct is “sexual harassment.” As the blueprint states:

Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.  This policy provides examples of unwelcome conduct of a sexual nature but then states that “[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” 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.” [Emphasis added.]

Put another way, because “hostile environment” harassment is now separate from “sexual harassment,” OCR no longer requires a showing of objective offense for conduct to be considered harassment. And because “conduct” includes “verbal conduct” (i.e., speech), even protected speech that wouldn’t offend a reasonable person may now be deemed “sexual harassment.” That’s new—and it’s certainly not common sense.

To demonstrate just how new—and dangerous—this result is, compare the blueprint’s removal of the objectivity requirement to the “Dear Colleague” letter issued by OCR in 2003 about the relationship between the First Amendment and federal anti-discrimination statutes like Title IX. In that letter, OCR made the importance of an objective evaluation very clear:

Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age. [Emphasis added.]

Removing the objectivity requirement and the other evaluative factors presents a serious threat to free expression on campus by rendering any speech of a sexual nature “sexual harassment” if a listener happens to be offended. As I explained in depth over at The Huffington Post, expanding the definition of sexual harassment this broadly means that real harassment will be trivialized, everyone on campus will be effectively branded a harasser, and students and faculty will rationally choose to keep their mouths shut rather than risk offending somebody. Those are all terrible outcomes for free speech on campus.

3. Unlike the 2001 Guidance, the blueprint entirely fails to consider civil liberties.

Finally, the new blueprint differs from the 2001 Guidance because it completely ignores free speech and due process rights. Not only did the 2001 Guidance grant significant deference to schools, and not only did it equate hostile environment harassment with sexual harassment and require conduct to be evaluated via a speech-protective set of factors, it also discussed civil liberties concerns at length, with two separate sections explicitly devoted to the First Amendment and the due process rights of the accused.

With regard to the First Amendment, the 2001 Guidance states plainly that:

Title IX is intended to protect students from sex discrimination, not to regulate the content of speech…. [I]n regulating the conduct of its students and its faculty to prevent or redress discrimination prohibited by Title IX (e.g., in responding to harassment that is sufficiently serious as to create a hostile environment), a school must formulate, interpret, and apply its rules so as to protect academic freedom and free speech rights.

That’s a very clear recognition of the importance of protecting campus expression, made even clearer by the 2003 Dear Colleague letter that followed, as my colleague Samantha Harris pointed out last week.

In sharp contrast—again—the words “free speech” and “First Amendment” simply do not appear anywhere in the blueprint’s 47 pages.

Sadly, the situation is much the same with regard to due process rights. The 2001 Guidance unequivocally acknowledges the necessity of due process protections:

The Constitution also guarantees due process to students in public and State-supported schools who are accused of certain types of infractions. The rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding. Furthermore, the Family Educational Rights and Privacy Act (FERPA) does not override federally protected due process rights of persons accused of sexual harassment. Procedures that ensure the Title IX rights of the complainant, while at the same time according due process to both parties involved, will lead to sound and supportable decisions.

The blueprint, on the other hand, does not. In fact, the blueprint even criticizes the University of Montana’s emphasis on due process rights:

The focus of the SCC [Student Conduct Code] process is on the perpetrator, his or her due process rights, and resolving possible violations of the SCC, and it does not adequately address the Title IX rights of the victim.

While the blueprint later acknowledges, in passing, that “students who are accused of [Student Conduct Code] violations are entitled to due process,” this brief aside is far removed from the 2001 Guidance’s clear recognition. In fact, the blueprint evinces such a contempt for due process rights that it actually goes so far as to suggest that in some cases, punishment may be required before the end of the investigation of allegedly harassing conduct:

In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution.  Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.[Emphasis added.]

Punishing a student before completing an investigation? It’s hard to imagine a more thorough rejection of due process rights than that.

Conclusion

So those are three major reasons that the blueprint represents a startling new approach for OCR—and a real threat to student and faculty rights. There are more. For example, the 2001 Guidance was issued after public notice and comment, in accordance with the Administrative Procedure Act, which requires agencies like OCR to solicit comments from those affected by proposed rulemaking before enactment. (Here’s athorough discussion of the APA in the context of OCR’s 2011 “Dear Colleague” letter.) In contrast, the blueprint tacitly announces new requirements for institutions under Title IX, but was subject to no such review or comment.

We’ll have much more on the blueprint here soon. In the meantime, if you don’t support what OCR and DOJ’s new blueprint has done to student and faculty rights, remember to tell them directly.

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