DOE's Sexual Harassment Guidelines Not a "Blueprint" for All Colleges

Ashley Thorne

This spring, the Department of Education’s Office of Civil Rights (OCR) issued a letter to the University of Montana with “guidelines” for disciplining sexual harassment on campus. The letter’s definition of sexual harassment was “unwelcome conduct of a sexual nature,” which, as many observers such as Greg Lukianoff and Wendy Kaminer were quick to point out, could be used to censor much that is perfectly legal.

Although addressed to the University of Montana, the letter said in the first paragraph that the “Resolution Agreement” set out therein would “serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The OCR letter prescribes “mandatory training,” orders fulfillment of Title IX “obligations” and “requirements,” and dispatches a series of “must comply,” “must remedy,” “must take immediate steps,” and so on.

Writing about the letter in his article, “Sexual Harassment—The Feds Go Way Too Far,” NAS president Peter Wood unpacked what was really going on: a grab for power by the regulators; a step in the long progression of feminism towards a surveillance society; and an assertion of the "victim rights" ideology.

Opposition to the rubric set out in the OCR letter united critics across the political and ideological spectrum. The Foundation for Individual Rights in Education (FIRE) has persistently challenged the OCR to reject its definition of sexual harassment as one that threatens constitutionally protected speech. We at the NAS have closely followed these OCR policies on our website (for example, here and here).

The OCR, in fact, has been broadening its characterizations of sexual harassment for several years, and an April 2011 “Dear Colleague” letter preceded the University of Montana one. The 19-page “Dear Colleague” letter sets out mandatory victim-friendly rules for colleges and universities—rules that instruct administrators to prosecute sexual harassment on the slightest evidence and neglect to mention constitutional freedom of speech. A student administrator wrote back to the OCR saying, “I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.”

Along with FIRE and other organizations defending constitutional freedoms, NAS signed a letter to the OCR urging the Office to recognize instead the definition of sexual harassment given in the Supreme Court decision in Davis v. Monroe County Board of Education (1999): 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.”

NAS’s involvement in this issue corresponds to our enduring interest in preserving academic freedom. We stand by the official statement we published twenty years ago, “Sexual Harassment and Academic Freedom,” in which we urged colleges and universities to protect students and employees from sexual harassment while also protecting academic freedom, and to:

  • define sexual harassment precisely, confining it to individual behavior that is manifestly sexual and that clearly violates the rights of others
  • set a reasonable statute of limitations on bringing sexual harassment charges
  • separate the offices of investigator, prosecutor, judge, and jury; observe the requirements of due process; and ensure the right of the accused to make an adequate defense
  • punish those who knowingly lodge false accusations of harassment, and
  • act against proven harassers forcefully, by dismissal if necessary, instead of coercing opinions and restricting speech.

* * *

This week our friends at FIRE received a letter from the new head of OCR, Catherine Lhamon, which states that OCR’s definition of sexual harassment is “consistent” with that of Davis. Lhamon also states that the Resolution Agreement was intended to apply only to the particular case at the University of Montana:

It is also important to note that the Agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.

The OCR thus appears to be backing away from some of its previous statements implying that the Montana agreement set a standard expected of all colleges and universities. We hope that this is a sign that Lhamon and her colleagues are willing to work with freedom of speech advocates to ensure that policies are consistent with rights established in the Constitution. While recognizing that there are still serious problems with OCR’s pronouncements on sexual harassment, FIRE has welcomed the OCR’s revisions, and we at NAS join them. We congratulate FIRE on the role it has played and hope that we at NAS have also helped to provide the encouragement OCR needed to take this good step.

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