NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
by Mary Lou Byrd
The Washington Free Beacon
Following months of controversy surrounding sexual harassment policies on campus, the University of Montana has adopted less restrictive guidelines than those proposed by the Department of Justice (DOJ) and Department of Education (DOE).
The Washington Free Beaconpreviously reported that the DOJ and DOE expanded its definition of sexual harassment on campuses to include speech. This expansion caused a firestorm of criticism led by the Foundation for Individual Rights in Education (FIRE).
The DOJ and DOE wrote that their expanded definition of sexual harassment would serve as “blueprint for colleges and universities throughout the country.”
FIRE described the new regulations as a “complete disaster” and Sen. John McCain (R., Ariz.) wrote the departments a letter seeking clarification about the extent of their reach.
The University of Montana adopted a different sexual harassment policy in August that was a departure from the May “blueprint” set by the federal agencies.
This new policy defines sexual harassment more narrowly and promises to comply with “free speech requirements for students and employees.”
Both the DOJ and the DOE’s Office of Civil Rights cooperated in drafting the policy. However, neither department has yet to approve it.
The reason for the delay in approving the policy is unclear.
The DOJ told the Free Beacon by email on Sept. 10 it would look into the matter, but did not respond by press time.
FIRE said the new guidelines are an improvement over those proposed in May, but remain potentially problematic.
“FIRE is cautiously optimistic that the University of Montana’s new policy represents a departure from the frighteningly overbroad standards the Departments of Justice and Education announced this May,” FIRE president Greg Lukianoff said in a statement.
“Montana’s policy defines harassment more narrowly than the blueprint, resuscitates the ‘reasonable person’ standard, and consistently emphasizes both free speech and academic freedom. All it needs is official approval.”
The new policy still poses some First Amendment concerns, according to FIRE.
The policy’s definition of discrimination includes “treat[ing an] individual differently” on the basis of 17 different characteristics, including an individual’s “political ideas.”
The group believes that this definition could classify protected speech—for example, satirizing fellow students’ political beliefs—as discrimination.
Additionally, in encouraging students to report harassing behavior, the policy suggests that students may secure no-contact orders and living arrangement changes on the basis of expression that does not meet the standard for hostile environment harassment, including protected speech.
FIRE said it believes that without definite, published standards for granting such no-contact orders, this new directive could be legally problematic.
“The University of Montana’s new policy is not perfect, but it is significantly clearer and more cognizant of student and faculty expressive rights than the federal government’s May directive,” FIRE director of legal and public advocacy Will Creeley said in a statement.
“That’s why the Departments’ failure to approve it in a timely manner is concerning.”
The group said the DOJ and DOE should both approve the new policy and also issue clear guidance on the definition of sexual harassment.
“FIRE calls on the Departments to approve the new policy, retract the blueprint, and issue new, clear guidance that follows Supreme Court precedent and mandates a constitutional definition of sexual harassment, lest other institutions mistakenly believe they must adopt the blueprint’s illiberal restrictions,” Creeley said. “Colleges and universities have a moral and legal obligation to prohibit sexual harassment—but doing so does not require sacrificing core civil liberties.”