NAS Signs Open Letter Asking OCR to Better Define Sexual Harassment

Ashley Thorne

NAS has signed an open letter (reprinted below) to the Department of Education’s Office for Civil Rights, joining a coalition of eleven organizations in asking the Office to clarify its guidelines regarding student sexual harassment in institutions of higher education.

The letter asks the OCR to make the Supreme Court decision in Davis v. Monroe County Board of Education (1999) the standard governing student sexual harassment. Davis defined student sexual harassment as 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.”

Many institutions deem sexual harassment behavior that is merely “offensive” or even “embarrassing.” Colleges and universities should instead use the “severe” and “pervasive” standards from the Davis decision when determining whether conduct should be considered sexual harassment, the letter argues.

In an article in the Washington Post, Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), describes the benefits of conforming to the Davis decision:

By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected. In one move, OCR could rid campuses of a substantial portion of all speech codes while protecting institutions from losing still more First Amendment lawsuits. Most important, by recognizing the Davis standard, the OCR would send a message that free speech and free minds are essential to — not incompatible with — the development of creative, critical and innovative thinkers on our nation’s campuses.

The open letter is a response to the OCR’s April 2011 mandatory guidelines which directed campus officials to prosecute sexual harassment on the slightest evidence and made no mention of constitutional freedom of speech. NAS’s Glenn Ricketts criticized the new guidelines as a threat to academic freedom and due process, and FIRE and the AAUP objected to them for their restrictions on free speech. An anonymous student affairs administrator also wrote an open letter to the OCR, saying that experienced human judgment is a better approach to getting to the bottom of sexual assault charges than this “victim-friendly” rule: “I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.”

The National Association of Scholars addressed this sensitive issue in 1993 when we issued our official statement, Sexual Harassment and Academic Freedom. To protect students and employees from sexual harassment while also protecting academic freedom, NAS urged institutions of higher education 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.

Our coalition’s letter to the OCR, 19 years later, is consistent with these standards.

* * *

Open Letter to Office for Civil Rights Assistant Secretary Russlyn Ali

January 6, 2012

Russlynn Ali
Assistant Secretary for Civil Rights
Office for Civil Rights
United States Department of Education
Lyndon Baines Johnson Department of Education Building
400 Maryland Avenue, SW
Washington, DC 20202-1100

Sent by U.S. Mail and Facsimile (202-453-6012)

Dear Assistant Secretary Ali:

For decades now, college administrators have struggled to define discriminatory harassment. Define harassment too broadly, and an institution might be on the losing end of a First Amendment lawsuit, the latest in a long line of courtroom defeats dating back more than twenty years. Define harassment too narrowly, and a student might sue for ignoring Title IX violations. As you know, a college that fails to maintain a sufficient harassment policy may be subject to investigation by the Office for Civil Rights, and a violation might mean loss of federal funding.

This confusion has led to the stubborn persistence of unconstitutional restrictions on student speech. A 2010 survey of policies at nearly 400 universities conducted by attorneys from the Foundation for Individual Rights in Education found that two-thirds of schools maintain policies that clearly and substantially restrict protected speech. Many of these restrictions are broad or vague harassment policies. For example, the University of Illinois at Urbana-Champaign defines sexual harassment to include any "statement that is offensive, humiliating, or an interference with required tasks or career opportunities." Jackson State University prohibits as harassment "verbally abusive language by any person on University-owned or controlled property." Marshall University's harassment policy bans expression that causes or was intended to cause "mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment." Unconstitutional policies like these persist despite an overwhelming string of defeats for similarly broad or vague harassment codes dating back to 1989, when a federal district court found the University of Michigan's speech code unconstitutional. The continued maintenance of such overreaching harassment policies benefits no one. Students risk punishment for protected speech; institutions risk losing lawsuits.

Fortunately, the Supreme Court has provided a clear standard for student-on-student harassment that simultaneously prohibits harassment and protects speech. In Davis v. Monroe County Board of Education(1999), the Supreme Court confronted the question of when a school could be held liable in a lawsuit for damages filed by a student victim of harassment. The Court held that a grade school properly faced liability after it demonstrated "deliberate indifference" to serious, ongoing student-on-student harassment. In reaching this conclusion, the Court formulated a definition of student-on-student harassment. The Court determined that to avoid liability, schools must respond to 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."

Twelve years later, the Davis standard is still the Supreme Court's only guidance regarding student-on-student harassment-and it remains the best definition of harassment for both students and colleges. Davis' central benefit is its precise balance between a school's dual responsibilities to prohibit harassment that denies a student equal access to an education and to honor freedom of expression. If merely "offensive" expression constituted harassment, then a student might be punished for telling a sensitive student a joke, reading a poem aloud, or simply voicing a dissenting political opinion. Instead, Davis requires the harassment not only to seem offensive, but to be objectively so. By incorporating this "reasonable person" element, the Davis standard frees campus discourse from the tyranny of the student body's most sensitive ears, as well as those feigning outrage to silence viewpoints they dislike. Furthermore, by including both "severity" and "pervasiveness" requirements, Davis protects the dialogue we expect universities to foster in the search for truth. Under the Davis standard, heated discussion is acceptable, but the truly harassing behavior that federal anti-discrimination laws are intended to prohibit is not.

We ask that OCR recognize Davis as the controlling standard for student-on-student harassment in the educational context. Further, in order to protect free speech and prevent harassment, we ask that OCR require that institutions adopt no more and no less than the Davis standard if they are to be deemed fully compliant with federal anti-discrimination laws. "No more and no less" is necessary because many colleges maintain conflicting harassment policies; a constitutional policy in the student handbook may be contradicted by an unconstitutional one posted online. Using the Supreme Court's definition would prohibit harassing behavior, safeguard student speech rights, and provide institutions with legal certainty. No court will find the Davis standard to be insufficiently protective of First Amendment rights or a student's ability to receive an education free from harassment. By insisting on Davis, OCR would not only eliminate a vast swath of campus speech restrictions, but would also confirm that the American campus remains what Supreme Court Justice William Brennan deemed "peculiarly the ‘marketplace of ideas.'"


Foundation for Individual Rights in Education
Accuracy in Academia
Alliance Defense Fund Center for Academic Freedom
American Booksellers Foundation for Free Expression
American Council of Trustees and Alumni
Feminists for Free Expression
The Heartland Institute
National Association of Scholars
National Coalition Against Censorship
The Tully Center for Free Speech at Syracuse University
Woodhull Sexual Freedom Alliance

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