Schools Need Not Violate Basic Rights to Take Sexual Misconduct Seriously

By August 16, 2013

Yesterday, I had a letter to the editor published in The Philadelphia Inquirer responding to an op-ed the paper published last week. The op-ed (“Helping make campuses safer,” Aug. 8), written by Carol E. Tracy and Terry L. Fromson of the Women’s Law Project, rightly notes the lifelong consequences for victims of sexual misconduct. However, the piece suggests that the recent efforts from the federal government that seek to address the problem are appropriate, despite criticism from many civil rights advocates that the efforts violate basic free speech and due process rights. Given word count restraints, my letter to the editor, which can be read here, addresses only one of the troublesome points Tracy and Fromson make in their piece: their contention that the federal government’s recent “blueprint” for campus sexual misconduct policies “do[es] not broaden the definition of sexual harassment.” The blueprint defines sexual harassment on campus as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” As I wrote in my letter, and as FIRE has explained before, this definition is much broader than the definition of peer harassment in the educational context set forth by the Supreme Court in Davis v. Monroe County Board of Education (1999): targeted, discriminatory conduct that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.” By removing the “objectively offensive” standard and eschewing the Supreme Court’s definition in Davis, the feds have indeed created a broader definition of sexual harassment. Tracy and Fromson go on to criticize as “trivial” the example put forth by many commentators that an unwelcome request for a date would constitute sexual harassment under the feds’ new definition. But it’s not trivial at all that under the plain language of the government’s new definition, an unwelcome request for a date would in fact constitute sexual harassment, even if it was only subjectively offensive (that is, if a reasonable person would not find it offensive), and even if it only happened once. Being labeled a harasser simply for asking for a date is a serious matter for the person so labeled. When you define virtually everything as sexual harassment, you make a joke out of it—which adversely affects victims of real sexual harassment. Tracy and Fromson also say that the guidelines are meant to merely encourage “reporting” of suspected sexual misconduct in an effort to “prevent more severe or pervasive misconduct.” It’s an argument often used by defenders of the feds’ new guidelines, one that is far from clear from the blueprint itself, and one we’ve repeatedly shot down anyway. Even if that were the rationale, the distinction between a broader definition just for reporting purposes and a narrower definition for investigative purposes still wouldn’t survive constitutional scrutiny.  As my colleagues Joe Cohn and Will Creeley point out in response to the same argument made by ThinkProgress, “the federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as ‘harassment’ than it may require the reporting of ‘unpatriotic’ speech as treason.” In fact, the Supreme Court rejected precisely the kind of argument Tracy and Fromson make in Meese v. Keene (1987), when the Court held that it is injurious to attach a pejorative label to a class of protected expression.  The authors also argue that the feds “have not weakened the standard for evaluating sexual misconduct or denied the accused fair treatment.” Perhaps they are referencing the Office for Civil Rights of the Department of Education’s April 4, 2011, “Dear Colleague” letter (DCL), which, among other things, mandated that schools receiving federal funding use the problematic “preponderance of the evidence” standard of proof when adjudicating cases of sexual misconduct.  As Joe argues in a blog post from October 2012: Allowing students to be branded sex offenders and expelled because a fact-finder thought that they were 50.01% likely to have committed a sexual offense—indeed, finding that the accused was a mere .01% more likely than not to have committed the crime—offends our time-honored conception of justice.   The authors state that the preponderance of the evidence standard was used on “80 percent of campuses” prior to the DCL. By setting forth this argument the authors acknowledge that for a significant number of students the preponderance mandate did in fact weaken the evidentiary standard, since many schools used the higher, “clear and convincing” evidentiary standard for adjudicating these cases. Moreover, once the federal government starts requiring a low standard of evidence, schools can hide behind the government’s mandate to avoid providing meaningful due process. Taking together the May 9 blueprint, which greatly expanded the definition of sexual harassment, and the April 4, 2011, DCL, which lowers the certainty by which schools find people guilty of violating the broader standard, the feds have created the perfect cocktail for potentially tagging innocent people as sex offenders. But it gets worse—under the May 9 federal guidelines, colleges and universities don’t even need to allow accusations of sexual misconduct to result in findings of guilt within the campus judicial system before the accused can be punished. The new guidelines allow for schools to take “disciplinary action against the harasser” even “prior to the completion of the Title IX and Title IV investigation/resolution.” According to Tracy and Fromson, this constitutes “fair” treatment of the accused.  Again, as I said in my letter to the editor, sexual misconduct on campus is a problem, and it’s a problem schools should take very seriously. However, it is a mistake to assume that the only way to properly address sexual misconduct is by infringing on students’ free speech and due process rights. The Supreme Court in Davis helped guide the way for schools to properly balance constitutional rights while taking allegations of sexual misconduct seriously. The government would do well to follow its direction—indeed, it’s required to. Want to know more about the ED/DOJ “blueprint”?  Check out FIRE’s Frequently Asked Questions here!  Image: “Home Architecture” - Shutterstock 

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