U.S. rule makes every student a sex harasser

John asks Mary for a date. She says no. The request was unwelcome, so he’s a sexual harasser. Professor Smith discusses the risk of HIV transmission through anal sex, making one of his 500 students uncomfortable. He’s a sexual harasser. Just about everyone on campus is guilty of sexual harassment under rules set out May 9 by the U.S. Departments of Justice and Education, charges the Foundation for Individual Rights in Education (FIRE).

The University of Montana’s mishandling of sexual assault charges — assault, not jokes — triggered a Letter of Findings and Resolution Agreement intended to be “a blueprint for colleges and universities throughout the country.”  The DOJ and DOE declared that sexual harassment should be defined as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (speech).

It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

Without a “reasonable person” standard, anyone can silence anyone else by claiming to be offended. FIRE lists some “forms of expression now punishable on America’s campuses by order of the federal government.”

 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.

Colleges and university that take federal funds — nearly all of them — must try to enforce the rule. “The federal government has put colleges and universities in an impossible position with this mandate,” said FIRE’s Greg Lukianoff. “The DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits.” And the federal letter misquoted a Supreme Court opinion to mandate an unconstitutional rule, he added.

Punishment may be required before a disciplinary hearing, writes Hans Bader, citing the letter of findings.

a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.

It appears that zero tolerance extends from sexual speech and dating requests to speech about the transgendered, writes Bader. “Gender-based harassment” is defined as “non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.”

In a 2001 case, Saxe v. State College Area School District, an evangelical Christian successfully challenged a harassment policy that “forbade certain criticisms of homosexuality,” Bader writes.

If Saxe is kaput, any discussion of homosexuality could be banned. Mary speaks up for gay rights. John says her speech is unwelcome, gender-based verbal conduct that he finds offensive. He doesn’t have to be a “reasonable person” to make her guilty of harassment. Of course, she’s offended by the fact that he’s offended, so he’s a sexual harasser once again.

Update: Eugene Volokh, a UCLA law professor, has more on federally mandated speech codes.

About Joanne


  1. GEORGE LARSON says:

    How can college students require special protection from these words, questions, comments and subjects when they are supposed to be adults and ordinary citizens outside of school do not require this protection?

    Maybe we should disband the police, hospital staff and armed forces because of the colorful langiage they will hear.

  2. Florida resident says:

    In the Zeno’s paradox of Achilles and the Tortoise, Achilles is in a footrace with the tortoise. Achilles allows the tortoise a head start of 100 metres, for example. If we suppose that each racer starts running at some constant speed (one very fast and one very slow), then after some finite time, Achilles will have run 100 metres, bringing him to the tortoise’s starting point. During this time, the tortoise has run a much shorter distance, say, 10 metres. It will then take Achilles some further time to run that distance, by which time the tortoise will have advanced farther; and then more time still to reach this third point, while the tortoise moves ahead. Thus, whenever Achilles reaches somewhere the tortoise has been, he still has farther to go. Therefore, because there are an infinite number of points Achilles must reach where the tortoise has already been, he can never overtake the tortoise.
    Aristotle (384 BC?322 BC) remarked that as the distance decreases, the time needed to cover those distances also decreases, so that the time needed also becomes increasingly small. Aristotle also distinguished “things infinite in respect of divisibility” (such as a unit of space that can be mentally divided into ever smaller units while remaining spatially the same) from things (or distances) that are infinite in extension (“with respect to their extremities”).
    Not sexually offensive.

    • Florida resident says:

      Here is a joke about Zeno paradox.

      Conditions of the paradox were changed. A nice naked lady is placed in one corner of the room. A contestant starts at the opposite corner [i.e. at initial distance L from the other corner] and is allowed to make one approaching move per 5 minutes (this resolving Aristotle’s objections about convergence of the time sequence). Each next step covers only half of the distance remaining to the lady. Here is what happens to a mathematician and to a physicist.

      Mathematician has heard about Zeno. He calculates that (total time) = (5 min)*SUM {1}= (5 min)*{N}=approx= (5 min)*log_(base_2) of [L/L_new] to reach the lady completely, i.e. to get L_new= L*2^(-N). Since L_new has zero limit, this sum _diverges_. So he quits.

      Physicist realizes that he does not need to reach _zero_ distance to the lady; the distance about 2 inches will be sufficient. So in a time (5 min)* log_(base_2) of [L / 2 inches] = about (5 min)*7 = 35 min he is happy.

      Is it harassment of the readers of this blog ?

      My best regards to esteemed Ms. Jacobs. Your F.r.

  3. Stacy in NJ says:

    We’re all sexual harassers now. Could be fun.

    The longer I live the more I believe we’re becoming some amalgamated version of Brazil, Brave New World and 1984.

  4. It’s likely that the purpose of this rule is to allow anyone to be punished at any time for any reason.  Of course, it will mostly be applied to straight white males.  It will be Duke lacrosse everywhere all the time, only legal and without recourse for the victims.

    • Stacy in NJ says:

      hmmm, I’m not so sure about white males being the primary accused. Because of the absurdity of the law, I would bet there are plenty of white males who would be willing to cry sexual harassment against their female classmates. Count on clever people to pervert the law by making it ridiculous with ridiculous claims. Unintended consequences and all that.

      • GEORGE LARSON says:

        I hope your vision of the future is accurate.

      • FuzzyRider says:

        This is the strategy being proposed on a number of right-wing and libertarian websites- flood the system with complaints about left-wing professors. If that happens,the policy will be reversed very quickly!

    • The purpose of these rules is for people with a bit of power, and a desire to appear heroic, to indulge themselves. But the high water mark for this sort of nonsense was passed with the collapse of the case against the Duke University lacrosse players and the beating various entities and individuals took as a result.

      Look at what happens when the application of these rules is dragged into the light by FIRE; the university beats a hasty retreat and, as like as not, revamps the offensive rules. Away from public scrutiny I’d guess that the word is quietly passed to ease up until that scrutiny diminishes.

  5. BadaBing says:

    Sure, white heterosexual males can claim sexual harassment, but who’s listening? And you’re right about the Brazil+Brave New World+1984 thing.

  6. cranberry says:

    So, I guess that’s it for Sex Week at various universities, eh?

    • Don’t forget Princeton’s nude Olympics. Gotta go, thought police banging on the door…

  7. As Tom Lehrer sung long ago (in “Smut”):

    “For filth (I’m glad to say) is in
    the mind of the beholder.
    When correctly viewed,
    everything is lewd.”

    So, under this rule, what the offender says doesn’t even have to be about sex, if the offended person thinks it is.

    • Richard Aubrey says:

      Actually, it needn’t have happened at all. A complete fabrication will do just fine.
      And what if a guy ignores a girl’s flirting?

  8. I like the bit about asking someone out on a date. Finally a law to completely divide the sexes once and for all…. I was wondering when the absurdity would arise, that you can not even do natures course of liking another person to pro-create. When is the war beginning, must be soon i guess….

    • Michael E. Lopez says:

      There’s a rock solid workaround for the date-asking problem.

      You just ask the person first if it is OK for you to ask them out on a date.

      Indeed, you could ask if you could ask four or five times a day — and while it might be harassment, it could never be *SEXUAL* harassment, because the only thing that is being discussed is whether or not you can ask a question.

      (The foregoing is not intended to be legal advice in any jurisdiction.)

  9. Welcome to the Orwellian nightmare. It’s no longer the future – it’s here. And with rules like these, everyone will be oppressed into fear of their own speech or thoughts. Scary beyond imagination.

    • Advanced in reproductive technology will soon make men obsolete. This is just the law getting ahead of technology.

      A re-read of “Houston, Houston, do you Read?” by James Tiptree Jr. is in order

  10. Stephen says:

    We’ve expanded ancient, and widely accepted and established legal definitions for crime and criminal procedure. What our legislators have allowed to occur to expand these terms is “over the top”. Every day, common encounters and comments become a crime with no due process. Absurdity is so easily legislated.

  11. Wayne Martin says:

    We hear a lot about sex harassment, but how much actual sex harassment is there really? Do schools actually publish statistics on the number of cases opened, closed, and the status of those cases?

    Here’s an interesting datapoint about sex harassment in the Military—


    False complaints of sexual abuse in the military are rising at a faster rate than overall reports of sexual assault, a trend that could harm combat readiness, analysts say.

    In 2012, there were 2,661 completed investigations, meaning that the 444 false complaints accounted for about 17 percent of all closed cases last year. False reports accounted for about 13 percent of closed cases in 2009.

    Would be interesting to see similar stats for our colleges/Unis.

  12. Law school applications in the U.S. fell by 14% and 20% in 2012 and 2013, respectively, due to the high expense and low return on investment. Undergraduate programs should begin experiencing the same trend for the same reason. Imposing an unconstitutional rule that will be applied arbitrarily and capriciously simply adds more risk to the prospect of higher education. As outrages are published and applications decrease, expect universities to change their behavior towards students.

  13. pxfragonard says:

    Making everyone a criminal allows the authorities to charge anyone for anything they say or do that is “out of line.” This is a police state in the making.