Back in October of 2009, University of California System president Mark Yudof issued a memorandum to all UC Chancellors announcing a systemwide policy change regarding the definition of discriminatory harassment in the educational context. Yudof’s memo noted that the prior UC harassment policies were "problematic for several reasons"—not least of which being the fact that they "created certain legal vulnerabilities" by failing to "track current case law regarding the standards for discriminatory harassment." Acting on the UC General Counsel’s recommendation to remedy the problem immediately, Yudof announced a new interim harassment policy, bypassing the "full consultative process" usually employed for policy changes, while a permanent policy fix was formulated. (Yudof still consulted campus Title IX officers, student affairs officials, and student judicial affairs officers in reaching this interim policy.)
The permanent fix hasn’t arrived yet, but in the meantime, the interim policy is a vast improvement. Unfortunately, more than a few UC schools seem to have ignored Yudof’s directive.
The new UC standard closely approximates the standard for discriminatory harassment in the educational context announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). In Davis, the Court held that peer-on-peer discriminatory harassment is properly understood as behavior that is (1) unwelcome, (2) discriminatory, (3) on the basis of gender, (4) directed at an individual, and (5) "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities."
Currently, UC Policy 102.9 reads:
Harassment is defined as conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person’s access to University programs or activities, that the person is effectively denied equal access to the University’s resources and opportunities on the basis of his or her race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, gender identity, marital status, veterans status, physical or mental disability, or perceived membership in any of these classifications.
That’s pretty close to Davis, and it adequately protects free speech while prohibiting true discriminatory harassment. And as Adam reported here on The Torch in February of 2010, some schools did indeed get the memo, incorporating the new policy into their materials. That’s a win for those schools and a win for their students: The schools receive the legal certainty of an airtight harassment policy, and the students shed the looming threat of being punished for engaging in protected speech.
Unfortunately, more than two years after Yudof sent out his announcement, a number of UC schools still haven’t complied with his directive:
- UC San Diego is still using an old harassment policy.
- UC Santa Barbara is also still using an old harassment policy, one which lists "personal jokes or negative comments about you personally or about you as a female or male" as an example of harassment.
- UC Santa Cruz is still using an old harassment policy, as well, and this one prohibits as harassment "exclusion from informal meetings/social events." What makes this even more confusing for students is the fact that the Code of Student Conduct lists the new policy, but the Title IX / Sexual Harassment Office doesn’t.
- UC San Francisco’s policy is also outdated. Additionally, the school is still distributing brochures ("Sexual Harassment: A Guide for Faculty, Staff, Students") that fail to note the new policy.
- Finally, UC Berkeley still maintains its outdated (May 2008) policy online, failing to note that it has been superseded by the new systemwide policy.
I imagine that President Yudof would have thought that UC system institutions would pay more attention to his direction on an important and legally sensitive policy instruction. We’ll keep watching here at FIRE to make sure that these UC schools follow their president’s direction—and the First Amendment.