Colleges and universities across the country could soon be forced to adopt a definition of “sexual harassment” so broad critics say it leaves almost every student vulnerable to punishment and violates their First Amendment rights.
The federal departments of Education and Justice issued an agreement with the University of Montana on May 9 following a year-long investigation into that school’s mishandling of several sexual assault cases. The investigation found the university's policies addressing sexual assault failed to comply with Title IV of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments. The agreement “will serve as a blueprint for colleges and universities throughout the country,” according to the letter.
In criticizing the university’s current policies, the agreement stated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” It also rejected the college’s requirement that to qualify, harassment must be “objectively offensive” to a “reasonable person,” even though that standard comes straight from U.S. Supreme Court precedents. That leaves room for the victim’s “subjective” determination that particular conduct is “unwelcome.”
The letter also states that the university “must take immediate steps to protect complainants,” possibly including disciplinary action against the accused, “prior to the completion of the Title IX and Title IV investigation/resolution.” In short: students can be punished before they are convicted.
The agreement triggered a flurry of criticism.
“I am appalled by this attack on free speech on campus from our own government,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE). Under such a policy, everything from a sex education class to a discussion of gay marriage to an overheard sexual joke and even casual flirtation could be punished, regardless of how unreasonable or insincere the “victim” was in taking offense.
“There is likely no student on any campus anywhere who is not guilty of at least one of these ‘offenses,’” Lukianoff wrote on FIRE’s website. “Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.”
Writing in The Atlantic, Wendy Kaminer suggested the rule was not meant to be fairly enforced because federal officials don’t expect religious conservatives to use the policy: “When people demand censorship of ‘unwelcome’ speech, they’re usually demanding censorship of the speech that they find unwelcome.”
Lukianoff also argued that, in rejecting the “objectively offensive” standard, the agreement violates not only the First Amendment and decades of precedent, but even policies the Education Department laid out in 2003. The right not to be offended has now been “enshrined in a federal mandate,” he wrote in a Wall Street Journal column.
What makes it even worse, Lukianoff added, is that two years ago the Education Department directed all colleges that receive federal funding to lower the standard of evidence in sexual assault cases from “clear and convincing” to “preponderance of the evidence,” making it much easier to get convictions, even on the flimsiest of evidence.
But despite a flurry of protest over that change, “it seems to me that higher education quietly made its peace with it,” said Peter Wood, president of the National Association of Scholars. The “sexual harassment bureaucrats” who administer the current policies will pressure colleges from within to go along with the change, he observed, and college presidents are “scared stiff of being accused of being soft on sexual harassment.”
Colleges that do otherwise risk having the Education Department strip their federal funding—delivered mainly via Pell grants and Stafford loans—for noncompliance. They also could be sued by a victim of harassment or assault for failing to provide government-mandated protection.
Christian colleges will be slower to change their policies, but they probably will too, Wood said, because the danger of their students losing access to federal government money is just too high.