Thursday, May 16, 2013

Most shocking federal policy yet: sexual harassment on campus is now defined by the accuser's subjective feelings, regardless of how irrational they might be

Citing a "hostile educational environment" at one university affecting "substantial numbers of female students," the Justice Department (DOJ) and the Education's Department's Office of Civil Rights (OCR) have written a joint letter intended to "serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault."  The letter shockingly declares that conduct may constitute sexual harassment even if it is not "objectively offensive." Specifically: "Whether conduct is objectively offensive . . . is not the standard to determine whether conduct was 'unwelcome conduct of a sexual nature' and therefore constitutes 'sexual harassment.'"

That means that, on college campuses across America, sexual harassment is now defined on the basis of another student's "subjective" feelings. Attorney Wendy Kaminer, writing in the Atlantic, explains: "If a student feels harassed, she may be harassed, regardless of the reasonableness of her feelings, and school administrators may be legally required to discipline her 'harasser.'"

In case you are suspecting that Ms. Kaminer is engaging in hyperbole, in just the first few days after the letter was issued, a chorus of protests appeared in print that unanimously denounced it in the strongest possible terms. FIRE collected them here. We can't recall such universal condemnation for any policy remotely similar. And for good reason.

FIRE calls the letter's "breathtakingly broad definition of sexual harassment" a "shocking affront to the United States Constitution" and explains that the letter "establish[es] . . . speech codes that violate the First Amendment and decades of legal precedent." It is nothing less than a sea change in the law:
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."

What does this mean in the real world?
Among the forms of expression now punishable on America's campuses by order of the federal government are:

•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.

Wendy Kaminer, for one, doubts that the policy is "intended to be fairly enforced," and we think she's right. "I doubt federal officials want or expect it to be used against sex educators, advocates of reproductive choice, anti-porn feminists, or gay rights advocates, if their speech of a sexual nature is 'unwelcome' by religious conservatives," Ms. Kaminer writes.

The letter even misquotes a United States Supreme Court decision, leaving out a critical phrase that harassment must be "objectively offensive" to trigger a school's Title IX obligation.  This suggests that the letter's misinterpretation of settled law is purposeful.

The letter also makes it mandatory that "a university must take immediate steps to protect the complainant from further harassment prior to the completion of the . . .  investigation/resolution." These steps include "disciplinary action against the harasser." (It is mind-boggling how a school will be able to declare someone a "harasser" before an investigation into an allegation of harassment.)  According to the letter: "These steps should minimize the burden on the complainant . . . ."

Two years ago, the Department of Education issued a letter designed to make it easier to punish the accused, both the guilty and the innocent, when it comes to alleged sexual offenses. Now, the Department of Education has teamed up with the Department of Justice to declare that the offense is whatever the accuser wants it to be, and it doesn't matter if the accused has any basis to anticipate that he is in breach of it.

The due process infirmities here are stark and manifest. College sex policies should not be guessing games, or free-floating standards of purported wrongdoing that punish offenses “in the air.” Fundamental notions of fairness dictate that college rules of conduct be sufficiently definite to warn the accused in advance of any purported offense that he might be violating. This is a fundamental component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A policy that does not meet that standard is unconstitutionally vague.

The joint letter scraps any semblance of fidelity to due process or the fair administration of justice. It establishes a policy akin to the rule of third world dictators: a punishable offense is whatever the dictator says it is. This should be unacceptable to all persons of good will.