In light of FIRE’s ongoing efforts to highlight concerns raised by the lowered due process protections mandated by the Department of Education’s Office for Civil Rights (OCR) in cases of sexual harassment and sexual assault, it is fitting to review our 2006 campaign against Gettysburg College’s sexual misconduct policy. The old Gettysburg policy’s draconian restrictions are a key example of how university harassment and sexual misconduct policies provide the opportunity for administrative abuse-something that will be made even more likely under OCR’s newly required "preponderance of the evidence" standard for adjudicating these cases.
FIRE became involved at Gettysburg in May 2006 after the school instituted a sexual misconduct policy that prohibited actions as innocent as hugging and established an extremely restrictive definition of consent. Under the policy, "consent" to sexual interaction was defined as "the act of willingly and verbally agreeing (for example, by stating ‘yes’) to engage in specific sexual conduct. If either person at any point in a sexual encounter does not give continuing and active consent, all sexual contact must cease, even if consent was given earlier." (Emphasis added.)
The policy’s broad definition of sexual interaction included "brushing, touching, grabbing, pinching, patting, hugging, and kissing." As we pointed out at the time, this policy was so broad it made practically every student on campus an offender, making it even more likely that the code would be applied selectively and abused by administrators.
After all, how many students at Gettysburg (or anywhere) ask for "continuing consent" to pat their friend on the back or hug their significant other? If one were to combine such an extreme policy with the OCR’s new guidelines for campus sexual misconduct, those same students would not only be guilty of sexual harassment for simple hugs-they would also likely be found guilty without the due process protections that are necessary to adjudicate such serious charges.
Fortunately, after a year-long public awareness campaign by FIRE, Gettysburg revised the policy. FIRE’s experience with such cases informs our recent commentary on the new OCR guidance, as we have first-hand knowledge of just how broad and open-ended university harassment codes can be. Five years after successfully defeating Gettysburg’s policy, we continue to fight to ensure that student rights are protected and administrative abuse is curbed.