According to a report released yesterday by the American Association of University Women’s Educational Foundation, 62 percent of 2,036 college students surveyed said they had experienced sexual harassment. The president of the foundation told The Chronicle of Higher Education that “sexual harassment pervades college life and prevents students…from achieving the social and academic benefits that colleges and universities offer.” And according to USA Today, the foundation will be rolling out initiatives at 11 colleges and universities aimed at “building a sexual harassment-free campus.” This all sounds very serious. Unfortunately, however, the major revelation of the survey is not that actual sexual harassment is rampant, but rather that no one seems to know what sexual harassment really means. As supporters of FIRE know, this is a rampant problem on college campuses, where administrators routinely prohibit all kinds of constitutionally protected speech as harassment.
Here is what sexual harassment really means, according to the Office for Civil Rights of the Department of Education: conduct of a sexual nature “so severe, persistent, or pervasive that it affects a student’s ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment.” The U.S. Supreme Court has put forth an even more restrictive definition of harassment in the case of student-on-student conduct.
By contrast, the survey provided students with 15 “examples of different types of sexual harassment,” the first of which was unwanted “sexual comments, jokes, gestures, or looks.” The students were then asked whether they had experienced any of the listed examples of sexual harassment. Their responses to that question determined whether they had been “sexually harassed.” Not surprisingly, the primary form of “sexual harassment” that students reported experiencing on campus was the first type: they reported that they had “received sexual comments, jokes, gestures, or looks.” The other, more severe forms of harassment were far less prevalent.
Perhaps the most telling evidence of the inaccuracy of the survey is this: according to the report, “the top reason that students gave for not reporting sexual harassment is that their experience was not serious or ‘not a big deal.’” Here’s the problem with that: according to the Supreme Court, for conduct to constitute sexual harassment, it must be both “severe or pervasive enough to create an objectively hostile or abusive work environment” and the victim must “subjectively perceive” the environment to be hostile or abusive. Harris v. Forklift Systems, Inc. (1993). If the so-called victim believes that the unwanted joke or comment was “not a big deal,” it does not constitute sexual harassment.
Say it with me, people: one offensive joke or remark does not constitute sexual harassment! This has been reiterated by courts across the country and by the Office for Civil Rights of the Department of Education, which is responsible for enforcing federal anti-harassment law at institutions of higher education. Sure, you can say that a majority of college students have been “sexually harassed” if you define sexual harassment to include any unwanted sexual remarks or jokes, just as I can say that hundreds of men ask for my phone number every day if I define “men” to include “imaginary men that I make up in my head.” But that doesn’t make it true! The true definition of sexual harassment has been set forth repeatedly by the Supreme Court and by the federal government agency that administers anti-harassment law in the educational context. The attempt to define harassment down by college administrators and now by the American Association of University Women both infringes on the constitutional right to freedom of expression and does a terrible disservice to the victims of actual harassment.