This week, members of a fraternity at the University of Missouri (MU) found themselves in front of the university’s Title IX coordinator after one of them dressed up as a Teletubby and danced across the street from women rushing a sorority, as shown in a video posted online. Thankfully, the Title IX coordinator quickly and correctly determined that this did not constitute sexual harassment. But it is remarkable that this was even raised as an issue and that someone tasked with assessing actions as serious as sexual assault and rape had to spend time—even a short amount of time—investigating this.
The upside, if you can call it that, is that the story has brought to light a more serious problem—the instructions that MU Title IX Coordinator Linda Bennett provided to students in an all-university memo a few weeks ago. Elaborating on an already-overbroad sexual harassment policy, Bennett’s memo seems to prohibit asking for consent for sexual activities.
“Examples of behavior that will not be tolerated,” the letter says, include “Requesting another person to engage in a behavior with a sexual body part or enacting a sexual behavior.” (Emphasis added.) How is a student supposed to engage in any sexual activity, except by first requesting that the other person engage in it? Maybe MU doesn’t think consent is sexy, after all.
Of course, repeated requests after a rejection may eventually rise to the level of sexual harassment—if that pattern of conduct is “so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.” This is the standard for student-on-student harassment the Supreme Court set forth in Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). Bennett’s guidance provides no such specifications.
That’s not the last of the university’s troublesome provisions. Other examples of intolerable behavior listed in Bennett’s memo include:
- Suggestive or insulting sounds or obscene gestures
- Off-color jokes
- Other physical, verbal, graphic or written conduct of a sexual nature
Further, “examples of behaviors that may be sexually harassing” listed in MU’s sexual harassment policy on its website include:
- Remarks of a sexual nature, such as comments about a person’s clothing, appearance, or sexual experience
- Suggestive or insulting sounds
- Off-color jokes or obscene gestures
Every day, millions of college students and professors engage in this sort of expression, but most of the time it does not come close to the level of harassment as defined by Davis. Trying to actually enforce this policy would be laughable; I dare MU to police every off-color joke that a student makes. It’s important to note that policies like this, which make most students offenders, are dangerous. It’s not that they create the risk that 90 percent of the student population will be suspended, but that they allow for selective or arbitrary enforcement—they can be used by administrators to punish whatever or whomever they just don’t like.
MU’s policy contains something of a limiting statement, but it does not approach the exacting standard of Davis. The policy simply says that when “harassment rises to the level that it interferes with employment or with education, then it becomes illegal and also violates the University’s policy.” The language that follows this statement, however, broadens the policy still further and is likely to chill expression when students aren’t sure if their speech would be covered under this policy. It says: “But even lesser levels of sexually harassing behaviors may be inconsistent with MU’s commitment to a safe and inclusive work and learning environment.”
What’s left, then, is a confusing policy that prohibits or at the very least chills a significant amount of constitutionally protected expression. Bennett’s recent memo exacerbates this problem by listing a number of constitutionally protected types of expression that “will not be tolerated.”
The University of Missouri is a public institution legally bound by the First Amendment, and it should revise its policy and clarify to all students and faculty that they will not be punished merely for telling a dirty joke or for initiating sexual activity the same way most of the country would—by asking permission.