Table of Contents
Sexual Harassment on College Campuses
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On our nation鈥檚 college campuses, sexual harassment is considered to be a form of sex discrimination that is prohibited by Title IX of the Education Amendments of 1972, a federal law that prohibits discrimination on the basis of sex in educational programs that receive federal funding. Because almost all colleges and universities receive funds through student loan programs or for research grants, virtually every college and university nationwide is required to follow it.
That means that colleges and universities have both a moral and a legal duty to effectively respond to all accusations of sexual harassment that, if true, would fit the legal definition of sexual harassment. As with many other crimes or offenses, not everything that people might colloquially refer to as 鈥渟exual harassment鈥 actually fits the legal definition of the term, and much of it actually is expressive conduct or free speech protected by the Constitution. So when colleges and universities respond to sexual harassment, they must do it without trampling on student and faculty members鈥 expressive rights.
Thankfully, the Supreme Court of the United States has provided a clear standard for student-on-student harassment that simultaneously prohibits harassment and protects speech. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the Court determined that sexual harassment in the educational context is targeted, discriminatory conduct
that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims鈥 educational experience, that the victim-students are effectively denied equal access to an institution鈥檚 resources and opportunities.
By definition, this includes only extreme and usually repetitive behavior 鈥 behavior so serious that it would prevent a reasonable student from receiving his or her education. (For example, in the Davis case itself, the conduct the Court found to be actionable harassment was a months-long pattern of conduct, including repeated attempts to touch the victim鈥檚 breasts and genitals and repeated sexually explicit comments directed at and about the victim.) Put simply, to be legally punishable as harassment, students or faculty must do far more than simply be rude or offensive.
The Department of Education鈥檚 (OCR) enforces Title IX and other federal anti-discrimination laws. It seeks to ensure compliance with these laws by all 鈥渞ecipient institutions鈥 鈥 that is, educational programs that receive federal funding, including colleges and universities.
OCR has made clear in the past that compliance with its regulations and the federal statutes it enforces doesn鈥檛 require prohibiting free speech protected by the First Amendment. For example, in 2003, OCR issued a to all university presidents on the subject of the First Amendment, in which the head of the agency stated:
I want to assure you in the clearest possible terms that OCR鈥檚 regulations are not intended to restrict the exercise of any activities protected under the U.S. Constitution. . . . OCR鈥檚 regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.
(While it sounds casual, a 鈥淒ear Colleague鈥 letter from the Department of Education is a statement of policy or guidance to administrators at educational institutions. They are called 鈥淒ear Colleague鈥 letters simply because that鈥檚 how they are addressed.)
But in its most (in)famous 鈥淒ear Colleague鈥 letter of all, the now-rescinded , OCR mandated that colleges and universities use our judiciary鈥檚 lowest evidentiary standard 鈥 the 鈥減reponderance of the evidence鈥 standard 鈥 when resolving complaints of sexual harassment.
The letter incentivized the removal of other critical elements of a fair procedure through two other provisions. It recommended that schools disallow parties from directly cross-examining each other. It also stated that if an institution鈥檚 procedures afforded an accused student an appeal, the institution must provide the accuser with the same right 鈥 effectively creating a form of double jeopardy (i.e., being tried for the same accusation twice).
On May 9, 2013, the Departments of Justice and Education also issued a in which it told the University of Montana that it must define sexual harassment as 鈥渁ny unwelcome conduct of a sexual nature,鈥 including 鈥渧erbal conduct.鈥 OCR called this letter 鈥渁 blueprint for colleges and universities throughout the country.鈥 While this conflicted with the Davis standard, it sent an unmistakable signal to institutions nationwide that those who did not use this definition would face potential trouble from the agency. (OCR ultimately walked back this position, too, but not before many schools had already taken steps to comply with it.)
When OCR鈥檚 mandate of the lowest evidentiary standard was combined with its mandate of the broadest possible definition of sexual harassment, the risk to free speech on campus grew exponentially. And even though the worst of these requirements has been withdrawn, schools that made changes to their policies based on these documents have mostly retained them. As a result, the amount of protected expression schools have labeled unlawful discrimination and/or harassment under Title IX has been staggering: law school test questions about Brazilian waxes, an anti-Donald Trump art exhibit, teaching in art school, teaching in law school 鈥 even writing or book critical of Title IX itself.
And studies released by FIREhave found that college policies fail to guarantee even the most basic elements of a fair hearing. Indeed, since the 2011 鈥淒ear Colleague鈥 letter was issued, students have filed nearly hundreds of lawsuits against colleges for allegedly conducting unfair disciplinary procedures.
On September 22, 2017, the Department of Education鈥檚 Office for Civil Rights rescinded the April 4, 2011, 鈥淒ear Colleague鈥 letter (and an accompanying ). The Department of Education has proposed new rules that would mandate that schools adopt a definition of sexual harassment that tracks the Supreme Court鈥檚 definition set forth in Davis. These rules would define sexual harassment as 鈥淸u]nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient鈥檚 education program or activity.鈥
If enacted, these rules would bring much-needed clarity to schools struggling to prohibit conduct that interferes with students鈥 access to education while respecting students鈥 rights to freedom of expression.
FIRE continually monitors sexual harassment/free speech issues and intervenes when student or faculty rights are jeopardized. Contact us with questions at fire@thefire.org.
For More on Sexual Harassment
Northwestern University Professor Laura Kipnis, 鈥,鈥 The Chronicle of Higher Education, May 29, 2015.
鈥淸A]ny Title IX charge that鈥檚 filed has to be investigated, which effectively empowers anyone on campus to individually decide, and expand, what Title IX covers. Anyone with a grudge, a political agenda, or a desire for attention can quite easily leverage the system. And there are a lot of grudges these days.鈥
Harvard Law School Professor Jeannie Suk Gersen, 鈥,鈥 The New Yorker, September 8, 2017.
鈥淚n the period since the Obama administration first brought sexual assault to the foreground of Title IX enforcement, the courts鈥 and the public鈥檚 views have developed to crystallize around the idea that Title IX protects the fair treatment of accusers and accused, women and men.鈥
Harvard Law School Professor Janet Halley, 鈥,鈥 WBUR, November 14, 2014.
鈥淭here are many other reasons for concern about the current moment of overreach. Chief among them: Women鈥檚 quest for sexual autonomy is undercut by protectionist images of our sexuality, mandatory reporter requirements, and the newly robust obligation of schools to pursue sexual harassment claims even when the alleged victims don鈥檛 want them to.鈥
鈥,鈥 American Civil Liberties Union.
鈥淧reventing harassment does not require unnecessarily restricting free speech. In fact, harassment is less likely to occur in schools where ideas can be freely and respectfully exchanged.鈥