More Examples of Actionable Sexual Harassment Under the ‘Blueprint’

By May 28, 2013

Over at Minding the Campus, Nathan Harden compiles an interesting list of instances in which universities have used student fees to fund what he argues are frivolous campus events. In his article, Harden argues that such uses of student fee resources are excessive and wasteful.

Harden is entitled to his own opinion, of course, as are the students who found these events worthy of funding. But from a FIRE perspective, as one reads about the campus events discussed in the piece, one cannot help but think about how many of them—despite being expressive activity protected by the First Amendment—could constitute "sexual harassment" under the recent letter from the Departments of Justice and Education to the University of Montana. After all, the problematic federal speech code "blueprint" is foremost on FIRE’s minds these days, given that it instructs colleges and universities that sexual harassment "should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’" including "verbal conduct" (i.e., speech).

Consider these examples from Harden’s article:

At Cornell, $7000 in student fees helped pay for a recent incarnation of an annual campus party called "Filthy/Gorgeous," an event designed to "celebrate the LGBTQ community." A campus news report details the notable features: "A bin of condoms sat on the table for people to take as they paid the $3 entry fee. Half-naked male and female dancers, some who work at the Splash Bar in New York City, were hired to get the crowd excited by sporadically kissing one another on stage and also by kissing members of the audience — regardless of gender."

[...]

At Washington University in St. Louis, $10,350 went to pay for "A Night With the Stars: Life, Love, and Sex in the Workplace." The "stars," of course, were porn stars. And the goal of the event (which was ironically hosted in the campus chapel) was to educate students about careers in the sex industry. Apparently, when one porn star asked who in the crowd was interested in a career in porn, three students stood up. Proves good jobs are hard to find these days. One wonders if the school’s undergraduate career services office picked up part of the tab for the event. 

At the University of Wisconsin, $100,000 went to fund an event called "Sex Out Loud." Organizers used this money to purchase a variety of creative items to fill so-called "pleasure boxes." These items included a "multifunction vibrator," an "egg vibrator with a blossom sleeve," "nipple cups," "anal beads," "floggers" (2 of them!), and, naturally, a 12-inch wooden paddle with "eight round openings." 

It’s not generally FIRE’s job, of course, to tell student governments what they should and should not be spending their funding on. I say "generally" because FIRE does step in on those occasions when student governments engage in unconstitutional content- or viewpoint-based discrimination in funding student organizations or activities. Harden’s examples are useful, however, in demonstrating the type of expression that could be implicated by the blueprint, and which the federal government appears to have completely disregarded.  

Under the federal government’s new guidelines—which, again, are intended as a "blueprint for colleges and universities throughout the country"—all it would take is for one student to be subjectively offended by such expressive activity or to deem it unwelcome on that campus, and the expression in question could be considered actionable sexual harassment. Without question, "unwelcome conduct of a sexual nature" (including "verbal conduct") covers all of this and more, so long as even a minimal level of subjective offense is present. Even if the complaining individual happens to be walking by the event and can easily avert his or her eyes, they are likely empowered under the blueprint to allege sexual harassment.

All this does, of course, is further demonstrate the absurdity of the Departments of Justice and Education’s ill-conceived letter to the University of Montana. As FIRE and others have been saying, it is difficult to imagine colleges and universities consistently enforcing the new federal definition of sexual harassment across the board against all unwelcome sexual speech. And if they do, the examples from Harden’s article portend just some of the types of speech that would be unconstitutionally restricted.

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