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.