New Sexual Harassment Directive Threatens Free Speech on Campus

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In a letter sent yesterday to the University of Montana and intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a troublingly broad definition of sexual harassment. The mandate applies to every college receiving federal funding. Free Expression Network member, FIRE, are objecting to the new guidelines as too broad and potentially affecting every student on campus.

The joint DOJ and DOE letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” and that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” So if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

Among the forms of expression potentially punishable on America’s campuses FIRE lists:

  • Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of The Vagina Monologues, a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
  • Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
  • Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

As FIRE also notes, “This result directly contradicts previous Department of Education guidance on sexual harassment. In 2003, the Department of Education’s Office for Civil Rights (OCR) stated that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Further, the letter made clear that “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.””

How harassment is defined and handled in an educational setting has long been a topic of interest to the free speech community. In a 2011 letter to the US Commission on Civil Rights and Dept. of Education, NCAC explained why 1st Amendment principles must not be sacrificed to overreaching policies on bullying in schools. We argued that the threat of federal civil-rights sanctions will cause schools to over-punish harmless speech even when an informal conversation might resolve a problem. The worst effect of such policies is that they may undermine schools’ capacities to deal with actual harassment while also suppressing free speech.