Last month, I spoke at Merced College in California (not to be confused with University of California, Merced) about free speech on campus. Unfortunately, I learned that earlier this academic year, as in recent years, the Merced College faculty received training in Merced’s sexual harassment policy which failed to provide them with any idea that the standard for student peer harassment is quite different from the standard for workplace sexual harassment. Even worse for the faculty members themselves, the workplace sexual harassment training failed to take into account the unique educational context in which faculty members work. Merced’s faculty members were trained using an outdated, typo-ridden document designed for a completely different audience and context.
The training document also featured lists of examples including speech that is likely to be protected on campus in most instances, such as "[t]elling sexual … stories." During my presentation, the faculty members in attendance expressed concern and confusion, wondering if they should completely avoid sexual topics in class in order to avoid charges of sexual harassment. (Try teaching a gender studies class or a literature class—even Chaucer—without ever telling "sexual … stories.") The faculty members told me that during the actual training, they were even told that a single utterance overheard by a third party could count as sexual harassment—apparently even if two professors are joking about something bawdy that Chaucer or Shakespeare wrote and the department secretary happens to walk by. In short, the training was so deficient and misinformed that it surely has chilled speech among faculty on the campus.
Merced’s choice of training document is worth this condemnation and more. The document is called "Sexual Harassment Prevention Training for Supervisors and Managers." (To distinguish it from many online products with the same name, I must reveal that this one was produced by the local company TM Consulting Services.) Very few faculty members fall into the category of supervisor or manager, since most of the time they are not supervising or managing any other university employee.
Furthermore, this four-year-old document refers to many court cases but none after 2003, and not a single case involving the educational context.
This is a significant failure. Take, for instance, Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), a decision from the United States Court of Appeals for the Ninth Circuit that applies to California universities. As my colleague Azhar Majeed tells the story in his excellent article in The Journal of College and University Law, "The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights":
Professor Dean Cohen brought an action against his College under 42 U.S.C. § 1983, alleging that it had violated his First Amendment rights by ruling that he had violated the school’s sexual harassment policy and taking adverse employment action against him. The harassment finding stemmed from a student’s complaint that Cohen focused on topics of a sexual nature in class discussion, used "profanity and vulgarities," intentionally directed comments "at her and other female students in a humiliating and harassing manner," and asserted controversial viewpoints in a "devil’s advocate" style.
The Ninth Circuit held that the College’s policy was unconstitutionally vague as applied to Cohen’s teaching methods. It reasoned, "Cohen’s speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy’s nebulous outer reaches to punish teaching methods that Cohen had used for many years." [notes omitted]
Indeed, the special educational and academic context of a university often makes all the difference when it comes to deciding whether "sexual" speech is protected or instead is a possible element in sexual harassment. If a faculty member’s speech is a normal part of teaching, a presentation, research, department committee work, or the like, it is much more likely to be protected on campus than in most other workplaces. In anatomy class, you can point out, and shout out, the names of body parts in ways that you perhaps cannot do among your coworkers at McDonald’s. In literature class, you can read aloud from a sex scene (relevant to the course) with impunity, unlike in the break room at Wal-Mart.
Just don’t, for example, stare at one particular student while you’re reading the sex scene.
And if the department secretary walks by during class, that’s OK. As the First Amendment Center’s David L. Hudson Jr. wrote in an article exploring the application of harassment law to the college environment, quoting FIRE Co-founders Dr. Alan Charles Kors and Harvey Silverglate:
But, applying a sexual harassment policy to a professor’s in-class speech raises substantial First Amendment concerns. If the teacher’s speech is not directed at a particular student for sexual favors, the First Amendment concerns loom larger. "If the speech is not repetitive, severe and persistent, then generally it should receive protection," says University of Pennsylvania history professor Alan Charles Kors.
Kors’ colleague at the Foundation for Individual Rights in Education, attorney Harvey A. Silverglate, wrote in a 1999 memorandum: "Title VII workplace law and Title IX education law cannot be interpreted so as to allow, much less require an institution of higher learning to curtail speech anywhere on campus, especially in the classroom which is the cauldron of the educational process. Such laws may be applied to genuine harassment, but not to speech cleverly classified as acts of harassment. If these statutes and regulations were in fact interpreted to apply to pure speech, they would thereby be rendered unconstitutional."
When you decide to work at a public college or university in any role, you inherently consent to be surrounded by the marketplace of ideas, because that’s what a college fundamentally is. People will be exercising their free speech rights all around you and will be doing what academic people do, and that may include language that is not sexual harassment in the academic context even if, for some reason, it could be counted toward a sexual harassment claim in a different type of workplace.
A California case on point, as FIRE noted in 2006 (too recently for TM Consulting Services), is Lyle v. Warner Brothers Television Productions, 132 P.3d 211 (Cal. 2006). In that case, a woman who was briefly a writer’s assistant for the popular sitcom Friends alleged that the frequent sexual banter of the show’s male and female writers subjected her to harassment as they discussed ideas and developed storylines and scripts. While admitting that she was not the target of any of the comments, Lyle claimed that some of the comments were generally derogatory towards women and therefore created a "hostile environment." The Supreme Court of California disagreed, in large part because the woman had taken the job knowing that this was the kind of environment she had signed up for. The court noted:
There is no dispute that sexually coarse and vulgar language was used regularly in the Friends writers’ room. But the use of sexually coarse and vulgar language in the workplace is not actionable per se. Rather, we must look to the specific facts and circumstances presented to determine whether the language at issue constituted harassment based on sex within the meaning of FEHA [Fair Employment and Housing Act] and whether such language was severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff because of her sex.
Prior to the court’s consideration of the case, FIRE joined the National Association of Scholars, the Student Press Law Center, the Center for Individual Rights, the Motion Picture Association of America, the Alliance of Motion Picture and Television Producers, Rubin Postaer and Associates (a prestigious advertising agency), and the Los Angeles Advertising Agencies Association in submitting an amici curiae brief pointing out that were Lyle to be incorrectly decided, all kinds of workplaces—including college campuses—would be adversely affected by the inevitable chilling of speech. The brief argued:
At the university, frank sexual discussion and sexual images can serve important pedagogic purposes. Consider, for example, university courses such as a feminist studies course criticizing pornography, a medical school class on human sexuality, a seminar on the art of Michelangelo, or a public health series on means of combating the spread of AIDS. In each of these classes, sexual content is academically appropriate, and academic freedom requires that debate on these topics be robust and uninhibited. Yet under the Court of Appeal’s ruling, discussion of a sexual nature in these classes — and in the halls and on the quads of universities — can be ended simply by the objection of a university employee to the speech.
Also on point, as Azhar wrote in his article,
In UWM Post, Inc. v. Board of Regents of the University of Wisconsin (1991), a federal court found a racial and discriminatory harassment policy to be facially vague and overbroad. The policy prohibited "racist or discriminatory comments, epithets or other expressive behavior" if such conduct intentionally "[d]emean[ed] the race, sex, religion," or other listed characteristics of an individual and "[c]reate[d] an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity."
The court rejected the University’s justification that "prohibition of discriminatory speech which creates a hostile environment has parallels in the employment setting, and that "under Title VII, an employer has a duty to take appropriate corrective action when it learns of pervasive illegal harassment." The court countered, "Title VII addresses employment, not educational, settings," and moreover "it cannot supersede the requirements of the First Amendment." In other words, the standards developed under Title VII hostile environment case law, which allow for comparatively broad regulation of verbal expression in the workplace, have no place in setting standards for speech in the educational setting. [Citations omitted.]
But no such guidance is provided to faculty members in the training document. In fact, the guidance is quite the opposite! Take this list, for instance:
The following guidelines may be useful in determining if a person [sic] behavior is inappropriate:– Would I want the behavior shown on the evening news?
– Would I want the behavior displayed to my spouse or child?
– Is there equal power and authority between the two parties?
– Would I want my spouse to behave in this manner?
– Would I behave in this manner if my parent were there?
– Is there equal intimation [sic] and participation between the parties?
If you have answered "no" to any of these questions, these actions are, at the very least, inappropriate for the workplace and can be considered a liability for sexual harassment.
Here, not only does the training document confuse the educational context with the non-academic, non-communicative workplace environment, but it also confuses speech in class with a report on the evening news. It even confuses academic discussion among adults with a discussion with one’s own child. Of course, if you can’t say something to your own child, it must be "at the very least, inappropriate for the workplace and can be considered a liability for sexual harassment"!
Finally, regarding the hypothetical example of a single utterance overheard by a third party, here again is the Lyle court:
With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. That is, when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions. [citations omitted]
The bottom line here is that Merced College’s sexual harassment training has so greatly missed the mark that it has left its faculty members in fear of going about their normal academic work on campus. The training has chilled expression on campus and limited academic freedom. Merced College should start over and retrain the faculty so that they understand that the college will fully respect their rights.