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.