Feds backpedal on definition of sexual harassment for campuses

May 31, 2013

By Robby Soave at The Daily Caller

The federal government reversed course this week after debuting its new definition of sexual harassment, creating confusion about what kinds of sexual behavior should be prevented on college campuses.

Earlier this month, the Departments of Justice and Education issued a memo to the University of Montana advising the university to alter its sexual harassment reporting and response policies. Administrators were told to consider “any unwelcome sexual conduct” as evidence of sexual harassment, even if the conduct is not severe, pervasive or objectively offensive.

Some free speech advocates, worried that the new memo would abridge the First Amendment rights of students and professors, asked the government to further clarify its new definition. But an email response from the Office of Civil Rights at the Department of Education only added to the confusion by claiming that sexual harassment is not illegal unless it also creates a hostile work environment.

“‘Sexual harassment is not prohibited by Title IX unless it creates a ‘hostile environment’ — that is, unless the harassment is sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program,” wrote the OCR in its clarifying e-mail. “To create a hostile environment, something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive must exist.”

The earlier memo, on the other hand, claimed that all potential sexual harassment was illegal, even harassment that was not severe, pervasive or offensive to an objective person.

“Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence,” wrote the memo’s authors. “Whether conduct is objectively offensive … is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment.’”

The updated statement described the federal government’s views on the matter as “consistent.”

But the Foundation for Individual Rights in Education, a free speech advocacy group, criticized OCR for contradicting itself.

“They are changing their standards as they go,” said Will Creeley, director of legal and public advocacy at FIRE, in an interview with The Daily Caller News Foundation. “The clarification email only furthers the confusion.”

The original memo to Montana was intended to serve as a blueprint for colleges and universities nationwide. But the inconsistencies will make it difficult for administrators to implement new sexual harassment policies, said Creeley.

“If I was a college administrator, I would be pretty mad and taken aback by the shifting standards,” he said.

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