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From Green to Red: A Cautionary Tale
I’m sad to report that one of our very few “green light” institutions (colleges and universities receive a “green light” rating on FIRE’s Spotlight if they maintain no written policies that infringe on constitutionally protected expression) was downgraded to a “red light” yesterday when I updated its policies for the 2006-2007 academic year.
The University of Iowa was one of only a handful of schools to be rated a “green light.” It earned this rating because its policies were consistent with the First Amendment. Its sexual harassment policy, for example, provides that:
For purposes of this policy, “sexual harassment” means persistent, repetitive, or egregious conduct directed at a specific individual or group of individuals that a reasonable person would interpret, in the full context in which the conduct occurs, as harassment of a sexual nature, when: [...] Such conduct has the purpose or effect of unreasonably interfering with work or educational performance, or of creating an intimidating or hostile environment for employment, education, on-campus living, or participation in a University activity.
This definition closely mirrors what the Department of Education and the U.S. Supreme Court have defined as unlawful harassment. Unfortunately, however, the University of Iowa now maintains a separate website about sexual harassment that provides a definition very different from that in the policy. At sexualharassment.uiowa.edu, students are told that sexual harassment “occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is.” Examples of sexual harassment include people “[t]alking about their sexual experiences” and “[t]elling sexual jokes, innuendoes, and stories, or comments (about your clothes or body, or someone else’s).” Unlike the first definition, this definition prohibits a great deal of constitutionally protected speech, since a single unwanted sexual joke or comment will rarely, if ever, constitute true harassment.
So what is the real definition of sexual harassment at the University of Iowa? Is it only “persistent, repetitive, or egregious conduct” that “unreasonably interfer[es]” with someone’s education? Or is it merely “when somebody says or does something sexually related that you don’t want them to say or do”? These are two very different things, and students at the University of Iowa are now forced to guess—under threat of punishment—which definition the university will choose to enforce. Most students will understandably take the safe route, avoiding any “sexual jokes” or “comments” that might violate the broader definition.
If the University of Iowa wants its green light back, it needs to get rid of this new definition immediately and inform students that they can only be punished for engaging in actual harassment of the sort described in the university’s original definition.
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