Under New Definition, U of Montana Tutorial is Sexual Harassment

By June 10, 2013

By now, Torch readers will be familiar with the Departments of Education (ED) and Justice’s (DOJ’s) new definition of sexual harassment, as stated in their May 9 letter to the University of Montana (UMT): "any unwelcome conduct of a sexual nature," including speech. As FIRE has explained, under the requirements of this federal "blueprint," speech constitutes "sexual harassment" if only one unreasonably sensitive person finds the speech offensive. Indeed, the ED and DOJ explicitly rejected the requirement in UMT policy that conduct be objectively offensive to a reasonable person before it could be properly deemed "sexual harassment."

So naturally, applying this definition would mean that a video about sexual conduct that is expected to make viewers uncomfortable would qualify as sexual harassment, particularly if those viewers were forced to pay close attention or jeopardize their studies … right?

Interestingly enough, as part of a program meant to address the problem of sexual assault on campus, the University of Montana, the very institution that is party to the blueprint, requires all of its students to watch a video tutorial on the topic and earn a perfect score on a post-tutorial quiz in the fall in order to register for spring classes. 

Danielle Wozniak, an associate professor in the School of Social work, spoke to the Missoulian (Missoula, MT) last year about the tutorial (emphasis mine):

"We know this video can evoke strong feelings on the part of men and women," she said. "This training is designed to create the opportunity for dialogue and discussion and to make sure we’re not silent about these issues." The program doesn’t mince words or shy away from the issue of sexual violence. The video comes with a warning to viewers saying, "If this tutorial feels uncomfortable, STOP and contact the Student Assault Resource Center for support." "The subject matter discussed in these videos could be difficult for some," Wozniak said, citing federal statistics suggesting that one in four college women have been raped or have survived an attempted rape since their 14th birthday.

In other words, it’s certainly foreseeable that a sensitive student would consider the mandatory tutorial "unwelcome [speech] of a sexual nature." 

As UMT administrators point out, the videos are designed to prompt meaningful discussion on an important issue. But the ED and DOJ didn’t define sexual harassment as "any unwelcome conduct of a sexual nature that doesn’t contribute to meaningful discussion." No, the Departments’ May 9 "blueprint" is clear: sexual harassment is "any unwelcome conduct of a sexual nature." Period.

The tutorial itself falls far outside the boundaries of harassment in the educational setting as defined by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). That decision requires student-on-student harassment to be targeted, discriminatory conduct that is "so severe, pervasive, and objectively offensive … that the victims are effectively denied equal access to an institution’s resources and opportunities." But because the federal blueprint fails to follow this precedent, even the isolated experience of a student becoming uncomfortable now constitutes sexual harassment. 

Thus, it would appear that the program, though presumably meant to educate students about sexual harassment and assault, is itself sexual harassment under the ED and DOJ’s new definition. This strange result illustrates in part why the Departments’ over-reaching "blueprint" is so dangerous and contrary to common sense. 

Even aside from this tutorial, of course, the overlap between protected speech on sexual matters and speech that constitutes "sexual harassment" under the blueprint is huge. The million-dollar question is whether UMT’s new policies will define sexual harassment as broadly as ED and DOJ insist. Since its own required tutorials are problematic under ED and DOJ standards, perhaps UMT will be motivated to reject the blueprint in favor of sexual harassment policies that allow for open and frank discussions about sex. Of course, FIRE will be watching to see whether UMT’s new policies allow these discussions—or preclude them.

Want to know more about the ED/DOJ "blueprint"?  Check out FIRE’s Frequently Asked Questions here!  

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