The Louisiana Senate has passed two bills applying to public institutions of higher education that contain unquestionably unconstitutional definitions of sexual harassment. As such, FIRE recommends that SB 230 and SB 232 be amended in the state’s House of Representatives or rejected entirely.
Currently, SB 230 and SB 232 define “sexual harassment” as:
[U]nwelcome sexual advances, requests for sexual favors, and other verbal, physical, or inappropriate conduct of a sexual nature when the conduct explicitly or implicitly affects an individual’s employment or education, unreasonably interferes with an individual’s work or educational performance, or creates an intimidating, hostile, or offensive work or educational environment and has no legitimate relationship to the subject matter of a course or academic research.
By allowing for the punishment of “unwelcome… verbal… conduct” that creates an “offensive” environment, the definition puts protected expression at risk and represents a substantial departure from the definition of peer-on-peer sexual harassment required by the Supreme Court of the United States in Davis v. Monroe County Board of Education. In Davis, the Court defined peer-on-peer harassment in the educational context as conduct that is “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.”
The Louisiana legislature should amend the bills to comply with Davis or reject them.
Properly defining harassment is crucial. Although harassment, properly defined, may be disciplined, overbroad campus harassment policies are among the most prevalent tools used by college administrations to censor and punish students and faculty for protected expression. For example, the University of Oregon once charged a student with violating five provisions of the student code of conduct, including a harassment provision, for shouting a joke (“I hit it first!”) at a passing couple outside her dormitory.
The Davis standard gives institutions the authority they need to address conduct that is unprotected without infringing on free speech rights in the process. So far, the standard has been codified by nine states: Alabama, Arkansas, Montana, North Dakota, Ohio, Oklahoma, Tennessee, Utah, and West Virginia.
Moreover, the United States Department of Education also requires institutions to maintain a definition substantially similar to Davis for the adjudication of Title IX sexual harassment claims on campus. Should the Louisiana legislature require institutions to adopt the definition currently in these bills, schools would be forced to choose whether to risk federal funding by being out of compliance with what Title IX requires, or being compliant with state law.
Instead of adopting an overbroad definition of sexual harassment that will lead to censorship and litigation, the Louisiana legislature should amend the bills to comply with Davis or reject them.