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Essay criticizes Education Dept. approach to sexual harassment

A Massive Burden
June 13, 2013

Earlier this month, the federal Departments of Education and Justice reached an agreement with the University of Montana following an investigation into the university’s compliance with Title IX of the Education Amendments of 1972 — an agreement that the agencies have said should serve as a “blueprint” for colleges and universities.

The administrative burden of following this blueprint is so great that it seems as if the federal government has forgotten that universities exist for a purpose other than sheltering 18-to-21-year-olds from offensive speech. Worse still, the federal blueprint defines sexual harassment so broadly that even colleges and universities doing their best to comply will remain at high risk for federal investigation and enforcement actions related to Title IX, and will risk First Amendment lawsuits as well.

The blueprint consists of two key documents: a 31-page findings letter and a 16-page resolution agreement. And while the incidents underlying the Montana investigation involved sexual assault, much of the blueprint focuses not on assault but instead on harassment. The findings letter holds that the University of Montana’s existing definition of sexual harassment is too narrow, and that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature.' " The letter also clarifies that sexual harassment includes "verbal conduct" (read: speech) and need not be "objectively offensive." Rather, speech becomes "sexual harassment" when the listener in question perceives the speech as "unwelcome."

The resolution agreement then identifies more than 40 distinct actions the University of Montana must take in order to be Title IX compliant. (Of course, universities not compliant with Title IX risk losing federal funding.) These actions include:

  • Developing and carrying out a system for tracking and reviewing reports of sex-based harassment (which, under the government’s definitions, includes any subjectively offensive sexual or gender-related speech).
  • Ensuring that all university offices (except where confidentiality privileges apply) notify the university’s Title IX coordinator within 24 hours of receiving information about sex-based harassment, regardless of whether a formal complaint was filed.
  • Ensuring that the educational environment of any student reporting sex-based harassment is free of further harassment (i.e., further subjectively offensive speech).
  • Conducting annual campus climate surveys for all students, analyzing the results of those surveys within 60 calendar days, and working with a paid equity consultant to develop actions to take in response to the survey results.
  • Developing a monitoring program to assess the effectiveness of the university’s efforts to address sex-based harassment, conducting an annual assessment of those efforts, and submitting that assessment to the federal government.

That’s just the beginning. And should the university fail to take any of these and other actions in a timely manner, the federal government may take legal action. Universities reading this blueprint should be deeply concerned for several reasons.

First, the administrative burden of following the blueprint is staggering. Indeed, one cannot help wondering — upon reading the document in full — how the federal government expects colleges and universities to have any time or money left over for the pesky task of actually educating their students.

Second, the blueprint requires public universities to choose between the newly mandated definition of sexual harassment and upholding students’ First Amendment rights. While earlier guidance from the Department of Education emphasized the importance of protecting free speech on campus, the words "free speech" and "First Amendment" do not appear anywhere in the blueprint’s 47 pages. While failure to comply with Title IX can lead to a loss of federal funding, public universities will also face legal action for violating students’ free speech rights. As such, this blueprint leaves public universities between a rock and a hard place. Although the Department of Education has since stated (not to colleges and universities, but to those who wrote in to criticize the blueprint) that the blueprint is not intended to interfere with First Amendment rights, this belated lip service to free expression does little to mitigate the blueprint’s impact.

Finally, the blueprint defines sex-based harassment so broadly that even universities making good-faith efforts to comply will still find themselves at high risk for investigation and enforcement actions. For instance, the University of Montana had already undertaken numerous compliance efforts during the course of the federal government’s investigation — steps the government, in its findings letter, deemed inadequate.

If universities want to remain able to fulfill their core missions, it is time for administrators to begin pushing back against the ever-increasing demands of the Education Department. No one disputes the importance of preventing sex discrimination on campus, but doing so need not consume so many resources that it interferes with universities’ ability to carry out their core educational functions, nor can it require universities to violate their students’ First Amendment rights.

Bio

Samantha Harris is a lawyer and the director of speech code research at the Foundation for Individual Rights in Education.

 

 

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