by Bob Unruh
Federal officials are trying to explain why they issued rules that require colleges and universities to consider any unwanted conduct of a sexual nature – even date requests – actionable sexual harassment.
WND reported that the May 9 guidance from the U.S. Department of Education was understood to mean that every flirtation on a college campus in America and every request to go out on a date could be considered sexual harassment.
In a new letter signed only by the Office of Civil Rights in the federal agency, officials insisted the Department of Education’s guidance was misunderstood.
“We have always maintained that the civil rights laws OCR enforces must be interpreted in ways that are consistent with constitutionally protected First Amendment rights,” the office said.
“Furthermore,” the letter claimed, “as we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”
The letter was a response to the backlash from the Department of Education advisory to the University of Montana regarding sexual harassment cases. The department advisory apparently eliminated the standard of whether a “reasonable person” would consider certain actions harassment. It explained that any comment, action, insinuation or implication would be harassment if it was unwanted.
The advisory warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”
The university policy held that “whether 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.”
That standard is not acceptable, according to the advisory, signed by Anurima Bhargava, chief of the U.S. Department of Justice Civil Rights Division Educational Opportunities Section, and Gary Jackson, a region chief for the U.S. Department of Education.
“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,’” the advisory said.
The advisory was addressed to University of Montana President Royce Engstrom and university lawyer Lucy France. It was a “resolution” of an investigation into the sexual harassment climate at the school and its “compliance review” of officials’ actions.
“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 federal officials warned the state.
Hans Bader of the Chronicle of Higher Education called the position adopted by the Department of Education “radical.”
“The department criticized the university for defining sexual harassment based on previous Supreme Court rulings, including a 1993 decision that said conduct is not harassment if it does not offend a ‘reasonable person,’ and a 1999 ruling in Davis v. Monroe County Board of Education that emphasized that conduct must be ‘severe, pervasive, and objectively offensive’ to constitute illegal sexual harassment under Title IX,” he wrote.
The Department of Education’s new statement contradicts its May 9 advisory, according to the Foundation for Individual Rights in Education, or FIRE.
The advocacy organization said the agency’s original “blueprint” requires colleges getting federal funding to define sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.”
“OCR and DOJ explicitly state that an institution’s definition of sexual harassment may not include a ‘reasonable person’ standard, effectively granting the most unreasonably sensitive students the power to determine what sexual or gender-based expression is permissible on campus. OCR even suggests that those accused of sexual harassment must in some instances be punished before an investigation has been completed. Institutions that do not adopt this breathtakingly broad definition, which contradicts decades of legal precedent and OCR’s past guidance, risk being found in violation of Title IX and losing federal funding,” the organization said.
“OCR’s new statement contradicts its May 9 letter. For example, in the statement sent yesterday, OCR contends that ‘the May 9 letter explains that ‘sexual harassment’ is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a ‘hostile environment.” But the May 9 letter includes no such explanation,” officials with FIRE wrote. “To the contrary, the May 9 letter flatly states that ‘[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV’ – and then proceeds to define ‘sexual harassment’ as ‘any unwelcome conduct of a sexual nature,’ including ‘verbal’ conduct.”
“The Office for Civil Rights’ weak attempt to walk back its disastrous May 9 letter is too little, too late,” said FIRE President Greg Lukianoff. “OCR’s belated lip service to freedom of expression following a national firestorm of criticism is hardly sufficient to undo the damage of a 47-page ‘blueprint’ that doesn’t once mention the First Amendment or freedom of speech. FIRE calls on OCR to immediately issue a swift and detailed retraction and clarification to every college and university in the country.”
Lukianoff continued: “OCR argues that a broad definition of sexual harassment encourages reporting, but mandating that state and private employees must report protected expression to authorities as ‘harassment’ is no more acceptable than requiring the reporting of ‘unpatriotic’ speech as treason.
“In just over two years, OCR has reduced due process protections for students accused of serious misconduct, issued dangerously vague guidance on ‘bullying,’ and is now mandating a definition of sexual harassment that will render virtually every student and faculty member guilty of harassment. The agency is out of control. OCR must reverse its attack on student and faculty rights before it is forced to do so by courts, legislators, and universities themselves.”
Bader warned of the complications of the new Obama administration ban on all unwelcome speech. Every sex education class would fall under that ban if even one squeamish student objects, he noted.
“Defining any romantic overture as harassment merely because it turns out to be unwelcome – even if it only occurred once, and was not repeated after its unwelcomeness became known – has dire implications for dating,” he wrote. “Since no one is a mind reader, the only way to avoid ever making an ‘unwelcome advance’ is to never ask anyone out on a date.”
Washington also recently came under fire for determining that on-campus sex assault cases would not be decided, as in courts, by evidence beyond a reasonable doubt.
Washington requires colleges to use a preponderance of evidence standard, which means someone would think there is more evidence something did happen than not.
On April 4, 2011, the Education Department issued a directive on campus sexual assault that states, “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”
And by “sex discrimination,” the department also meant rape. The direction on grievance procedures is listed under a heading titled “What are a school’s obligations under Title IX regarding sexual violence?”
College campus courts using the preponderance of evidence standard of evidence to weigh sexual assault cases have many onlookers outraged.
The group Stop Abusive and Violent Environments, or SAVE, believes the department policy is unconstitutional. SAVE issued a statement declaring the preponderance of evidence standard is “stripping the accused of the presumption of innocence and allowing students to be expelled without the benefit of legal counsel.”
SAVE has published a list of 13 organizations that have issued letters calling on the department to rescind its sexual assault directive, including the American Association of University Professors, the American Council for Trustees and Alumni, the National Association for Scholars, Tully Center for Free Speech at Syracuse University, eight civil rights scholars, Accuracy in Media, the Heartland Institute, the Alliance Defending Freedom and Feminists for Free Expression.
A year ago, WND reported a case of severe injustice caused by the department’s preponderance of evidence policy.
Student Caleb Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police.
Officers not only refused to charge him but also alleged his accuser made a false report. Police issued a warrant for her arrest.
It took 18 months – during which Warner not only was banned from the UND campus, but also from all college campuses in the state – for the university to agree to reconsider the conviction and clear his record.
FIRE said, “Nobody should be surprised that [Warner] does not want to return to UND. The university showed less than zero concern for disrupting his life and career and branding him a criminal based on an extremely low standard of evidence, and has shown zero inclination to be remorseful about what it has done.”