Debate Rages Over Obama Definition of College Sexual Harassment

The Obama Administration wants a broader definition of sexual harassment to encourage more incident reporting

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University of Montana at Missoula, MT.

To hear the critics tell it, President Obama wants to restrict free speech at college, interfere with campus dating and “de-eroticize” university life. The reasons can be found in a single line of the May letter from the Departments of Justice and Education to the University of Montana, Missoula—a campus long plagued by sexual assaults and shoddy sexual harassment prevention efforts.

The letter asks the school to encourage students to report what they believe to be sexual harassment on campus, regardless of whether the harassment is creating a hostile environment for students. It also sets a broad standard for what harassment means. “[S]exual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,'” reads the document. “Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment.’”

It’s a minor legal point, but critics say it could have big implications that could prevent teachers from teaching sexually explicit books and implicate everyday classroom flirtations. Historically, most colleges—including the University of Montana—have defined sexual harassment as conduct that creates a hostile educational environment. As recently as 2012, the Department of Education upheld the “hostile environment” standard in agreements with institutions like Yale University. Under current definitions, a “hostile environment” involves behavior of a sexual nature that is more than just “unwelcome.” It must be “sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.”

The Obama Administration believes that should still be the criteria for identifying a hostile environment. But they want a broader definition of sexual harassment to encourage more incident reporting. “To ensure students are not discouraged from reporting harassment, the [Montana] agreement allows students to report when they have been subjected to unwelcome sexual conduct, and requires the University to evaluate whether that conduct created ‘a hostile environment,'” said Dena W. Iverson, a spokeswoman for the Justice Department. Separating the definitions of “sexual harassment” and “a hostile environment,” says another Justice Department official, encourages victims to let the proper authorities know about questionable behavior.

Conservative politicians, civil liberties advocates, and academics have criticized the broadening of the definition of harassment. On June 26th, Arizona Senator John McCain sent a letter to Attorney General Eric Holder questioning the Obama Administration’s powers to unilaterally emphasize the broader definition of harassment. McCain also asked if “a student giving another student a Valentine’s Day Card” or “a student listening to music that contains content of a sexual nature overheard by others” could constitute harassment under the new standard.

Academic professionals have also joined the dialogue about the implications of the DOJ’s resolution agreement. On June 6th, Professors Ann Green and Donna Potts of the American Association of University Professors (AAUP) wrote a letter to Assistant Attorney General Thomas Perez and Assistant Secretary for Civil Rights Russlynn Ali expressing their concern that “a broader definition of sexual harassment may limit academic freedom for the teaching of controversial subject matter.” In an email, Professor Green reflected that the most worrisome characteristic of the DOJ’s agreement is that it does not concur with precedent, which requires sexual harassment to be “evaluated from the perspective of a reasonable person in the alleged victim’s position.”

“While I applaud efforts by the DoJ to make campuses more safe for women,” Green told TIME, “the elimination of the reasonable speech standard is potentially dangerous when controversial material is taught.” The AAUP has encouraged the DOJ to adopt their definition of sexual harassment, which requires the input of a reasonable, objective outsider and states that in the teaching context behavior must be “persistent, pervasive, and not germane to the subject matter” to be considered harassment.

In May, the Department of Education’s Office of Civil Rights publicly responded to an email from the Foundation for Individual Rights in Education, an academic civil rights group, by arguing that the definition of sexual harassment in the Montana case does not change the legal triggers for liability. “Our letter and agreement require that the University of Montana’s policies and procedures consistently articulate the University’s prohibition of sexual harassment that creates a hostile environment,” the response reads. “At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment. Students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct, and the University will evaluate whether that harassment has created a hostile environment.”

According to Lucy France, general counsel of the University of Montana, that means you can report that the annoying boy who sits next to you in class is being creepy, but that doesn’t mean the school will do anything about it. “The revisions currently being added to university policy,” she says, “aim only to clarify the procedures for filing harassment-related grievances, to establish protocol for adequately investigating and responding to allegations, and to train the school community in identifying and addressing sex discrimination and violence.”

So what does the free speech crackdown in Missoula look like? Are flirts being handcuffed in the hallways? Do social events now look more like a scene from Footloose than from Animal House? In a word, no. First of all, the Department of Justice’s agreement was published the day before final exams started, so most students and employees are unaware of it or have not yet been effected by the news. Missoula looks more like a ghost town than a college town in early July, but Professor Beth Hubble—co-chair of the University’s Council on Student Assault—says there is a team of lawyers and educators hard at work on policy revision over the summer.

For students at the University of Montana, the Department of Justice’s agreement and the changes being made by the school this summer mean a few things. First, they mean more email. The DOJ’s agreement requires the university to inform all students and employees of policy revisions. It also mandates annual, anonymous surveys to be distributed to all students. Indirectly, alerting the school community to changes being made could facilitate a more open and interactive dialogue about sexual harassment and discrimination.

Second, despite the qualms of civil liberties advocates, Montana’s curriculum won’t change. Beth Hubble claims that online commentators are misrepresenting how the DOJ agreement will affect academic freedom at the university. “It’s not about what faculty teach, it’s about what faculty do,” she says. “I can and do teach novels that have violent scenes in them, that have sexual violence in them. And I’m not going to stop that.” She cites Geoffrey Chaucer’s “The Miller’s Tale” as an example of a text that could be construed to seem inappropriate under the Letter of Finding, but then points out that the use of that text would not be considered inappropriate unless it created a “hostile environment” that denied or limited a student’s ability to participate in or benefit from the school’s education program. Says Hubble, “You teach whatever you teach, you just don’t hit on the students while you’re doing it.”

Some students may also get a new dorm-mate this year. There will be a “Campus Relations Officer”—a representative of the Office of Public Safety—living in a residence hall, attending meetings of the Council on Student Assault, and conducting trainings on harassment. Other students will be forced to take part in focus groups conducted by the university’s new “Equity Consultant.” In a post created by the Department of Justice’s agreement, the Equity Consultant will evaluate and recommend revisions to university policy, and conduct an annual survey with recommendations for the school By the end of next school year, every single student and employee will have taken part in the training or will be required to do so in 2014.

According to Hubble, a number of other colleges have asked the University of Montana for permission to use and adapt their mandatory training. Though she sees their requests as encouraging, others worry that nationwide dissemination of the DOJ’s findings and recommendations may do more harm than good. AAUP’s Green fears the DOJ’s actions will “deaden lively intellectual discussion and rigorous debate.” Even though the Montana “blueprint” did not explicitly limit academic freedom, she contends that universities are more likely to respond to it defensively rather than critically, which “could have a silencing effect on classrooms.”

UCLA law professor Eugene Volokh says his concern with the resolution agreement “is less about what’s going to happen at this one university and more what message other administrators get from this in other contexts.” Volokh has accused the Department of Justice of trying to implement “broad speech codes,” noting that while the Obama Administration does not require universities to punish all behavior that fits the definition of sexual harassment, it repeatedly expresses the government’s intention to “prevent”, “prohibit”, “eliminate”, and “not tolerate” sexual harassment. Volokh says such language sends a powerful message to public universities that don’t want the Feds poking around their campuses. “It is true that they’re trying to get it reported, but they’re not just trying to get it reported,” he said, of sexual harassment. “They’re trying to make clear it is unacceptable.”

The Department of Justice says that they are in the process of crafting responses to Senator McCain and the American Association of University Professors that will clarify the precedent set by the existing agreement. Whether or not they amend their position, the results of their investigation now loom over every discussion of free speech, academic liberty, and gender relations on campus.

22 comments
forgottenlord
forgottenlord

This is worth the huge hullabaloo?

Will this affect content: NO!  Yes, some reading content might make some people uncomfortable but that really should only exist in classes where you're dealing with more hypotheticals and the profs should be cognizant and make students aware in advance that this could be uncomfortable while noting the educational value.  Theoretically, students will be able to handle that - one would hope they can handle that.

Will this affect debate: NO!  Can debates and individuals in debates get hostile?  Absolutely.  Can that hostility be sexual in nature?  Absolutely.  Should that be banned? Absolutely.  The teacher SHOULD be moderating debate and keeping it intellectual and away from ad hominem attacks including sexual harassment.  The one condition I could see is if an individual (hypothetically or actually) was positing a sexist position, but a good debate would allow for respectful exchange of these ideas which should help limit the discomfort level.

Plus, just because it's sexual harassment doesn't mean people are going to jail.  Sometimes, it just requires someone to say "hey, that's kinda creepy, cut it out" - and as someone who's been told he was creepy years later, I can tell you that this is an important piece of information and incredibly helpful.

rshibley
rshibley

It is also very worth noting (which this article didn't do) that on Page 6 of the DOJ and ED's letter, the government actually says that, far from being just for reporting purposes, those who violate this broad definition of sexual harassment may have to be punished before they are found guilty. Hard to believe, but it's true. Here's the quote: 

In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.

So this article's premise that the entire debate is only over one line of the letter is, unfortunately, faulty. And none of this is a "minor legal point."

DabizLegend
DabizLegend

The Democrats are finished. Obama is putting the nail in their coffins. Done deal.

Gipkik
Gipkik

That sounds like a reeducation camp.  Higher education my foot.  More like elementary school.

sixtymile
sixtymile

What does "objectively offensive" mean?

Sibir_Russia
Sibir_Russia

Excessive use of force by the police and racial profiling

 According to the report of the non-governmental National Police Misconduct Statistics and Reporting Project, only in 2010 there were registered more than 5,000 cases of excessive use of authority by the police officers. Various offenses of a sexual nature (sexual harassments, sexual abuses, rapes etc) are regularly committed. According to the data available from the public sources, for example in 2010 - 618 police officers were implicated in such acts, at the same time in 180 cases the minors became victims of violence. The human rights defenders note that the level of sexual crimes committed by the police officers is significantly higher than the level of those committed by the USA population in general.

http://mid.ru/bdomp/ns-dgpch.nsf/8f29680344080938432569ea00361529/2ab49ff642baf0c244257aa000254663/$FILE/Report.doc

Sibir_Russia
Sibir_Russia

Immigrant workers arriving in the USA often become victims of sexual abuse. In 2008, NGO Southern Poverty Law Center interviewed over two hundred women from Latin American countries working in five southern American states. Almost three forth said that they suffered from sexual harassment in their workplaces. In 2011, Human Rights Watch conducted a similar survey. Its report Cultivating Fear was based on the information provided by 160 interviewees, including female agriculture workers, farmers, law enforcement officials, lawyers, and other experts from eight states. Almost all of them agreed that sexual abuse against labour migrants working in agriculture was a pressing problem. All of the foreign female workers that took part in the survey said that either they or somebody they knew were victims of sexual harassment in the past.

According to the U.S. Department of Justice, only about 40 per cent of rape and sexual harassment victims complain to the police (official statistics suggest that every fifth woman in the USA has at least once been a victim of sexual violence)

http://mid.ru/bdomp/ns-dgpch.nsf/8f29680344080938432569ea00361529/2ab49ff642baf0c244257aa000254663/$FILE/Report.doc

Sherm
Sherm

And another new legal industry is born.  I'm sure the tort lobby will reward the president handsomely for this when he's out of office.  Does this qualify as a "jobs program"?

MrJM
MrJM

"To hear the critics tell it, President Obama wants to restrict free speech at college, interfere with campus dating and 'de-eroticize' university life."

I never engaged in"unwelcome conduct of a sexual nature" in college but I still managed to get laid.

It ain't rocket science, people.

-- MrJM

rshibley
rshibley

To say that the concern over the various mandates found within “the blueprint” (http://thefire.org/article/15835.html) constitutes “a minor legal point” is to ignore the abuse of precisely these kinds of broad and vague harassment regulations for the past three decades.

Since the 1980s, university administrators have used harassment codes to punish students and professors for protected speech. When Beth Hubble claims that online commentators are “misrepresenting” the agreement and says that she has nothing to worry about in teaching Chaucer’s violent and sexual themes, she’s ignoring the numerous examples of professors being punished for speech and teaching that is academically relevant and clearly protected. Just last year, a professor at Appalachian State University was placed on administrative leave for allegedly creating a “hostile environment” when showing a documentary that critically examined the adult film industry. In 2011 a tenured professor at the University of Denver was found guilty of sexual harassment for discussing sexual topics in a graduate-level course that examined "Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs." For more on the abuse of vague and overbroad harassment codes over the years, read Azhar Majeed in The Huffington Post: http://www.huffingtonpost.com/azhar-majeed/how-colleges-label-protec_b_3430109.html .

Because broad and vague harassment policies have often been abused to punish speech protected by the First Amendment, courts have been very clear about what constitutes harassment. In Davis v. Monroe County Board of Education (1999), the Supreme Court held 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' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities."

ED/DOJ’s definition—sexual harassment is simply “unwelcome conduct of a sexual nature”—obviously falls well short of the narrow definition provided by the Supreme Court. Where does ED/DOJ think it derives authority to unilaterally ignore Supreme Court precedent, exposing students and faculty members to punishment for protected speech? More on the Supreme Court’s definition of sexual harassment can be found here: http://thefire.org/article/15849.html#definition .

Finally, some of those interviewed for this article seem to think that because the federal government has defended the broad definition as being “just for reporting,” the threat to free speech is somehow permissible. That’s simply not true. Defining protected speech as “sexual harassment” prohibited by Title IX chills protected speech and is therefore an impermissible means of encouraging reporting. The federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as “harassment” than it may require the reporting of “unpatriotic” speech as treason. For more on the problems with the “it’s just reporting” argument, read this: http://www.forbes.com/sites/realspin/2013/06/12/reporting-your-neighbors-speech-dont-laugh-its-coming-to-a-college-campus-near-you/ .

PaulDirks
PaulDirks

Where's the link to the actual letter so I can judge it for myself instead of relying on hearsay? That there is some lousy reporting.

destor23
destor23

So, in a way this seems like little more than "see something, say something" applied to social interaction.  If somebody leaves a piece of luggage on the bus, you're supposed to tell a transit worker or police officer and they'll figure out if it's a matter for lost and found or the bomb squad.  In this case, if you're just not sure if you've been harassed or just part of a passing awkward social interaction, the university is saying, "feel free to let us know and we'll help you sort it out.s"  That's not especially Draconian.

It is a little sad, though.  There is, underlying this, something of an anti-sex impulse at work and you can easily see how this equality officer and the representative of the office of public safety is going to ruin all of the really cool parties and in general interfere with the Bacchanal that college is supposed to provide.

uvacoverups
uvacoverups

@rshibley 

It's a joke that you actually think schools will punish harassers "before they are found guilty". It's a joke. For someone who is quoting from the DOJ and ED's Letter you must be quite conversant with how little Colleges do to protect women/victims. Repeat offenders, rapists, "RAPE" and never get punished. Schools like the University of Virginia have never expelled any student for sexual misconduct and that includes RAPE. Do you actually believe that is statistically possible? You're an attorney and you know very well that US schools deliberately and systematically protect student rapists.

bryanfred1
bryanfred1

Nah, those people are already lawyers.  But the teams of Campus Relations Officers and Equity Consultants sure do.  Know where most of the money collected in ever-increasing tuition bills is going?  Primarily to college administrations that have doubled in size, with average salaries commonly well over $100,000.

TyPollard
TyPollard

@PaulDirks 

If it weren't for lousy reporting there would be very little reporting.

Sherm
Sherm

@destor23 That's okay, soon everyone will be going to college on-line.  The campuses can then be re-purposed for use by the only remaining growth sectors:  heath care, law firms and NSA contractors.

uvacoverups
uvacoverups

@rshibley Oh, sorry did I mention the list of current regulations under Title IX that colleges blatantly ignore. Who cares what the DOJ and ED says? It hasn't stopped colleges from covering up rapes. It's all talk from all the parties. Colleges lobby and cut ED's feet and the DOJ looks the other way. Meanwhile, women in colleges continue to get raped without any justice. None.