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.
Samantha Harris is a lawyer and the director of speech code research at the Foundation for Individual Rights in Education.
"Holding Colleges Responsible” is the latest example in a slew of articles – many of them quoting the Foundation for Individual Rights in Education – that are meant to alarm anyone with a voice, and the author’s use of selective quotes out of the Education Department’s Office for Civil Rights's response to FIRE only fans the flame.
At issue is whether the Education Department’s enforcement of a law and guidance that are designed to promote compliance with Title IX of the Education Amendments of 1972 and prevent sexual harassment put free speech at risk. In particular, the recent cause for concern is language in the agreement between OCR, the Department of Justice, and the University of Montana, which the government called a "blueprint for colleges and universities throughout the country."
Readers should know that preserving free speech and academic freedom and ensuring an environment free from sexual harassment are not mutually exclusive goals, and OCR has never published guidance or decisions that aim to limit even the most explicitly sexual academic material.
The issue seems to be the department’s acknowledgment that conduct that is not yet severe or pervasive may still constitute sexual harassment. OCR clarified in a letter to FIRE that only severe or pervasive sexual harassment actually violates Title IX. The department’s view requires defining sexual harassment broadly and understanding the difference between an institution’s obligation to educate and proactively problem-solve and the obligation to "bang the gavel."
The Office for Civil Rights's "Dear Colleague" letter from April 4, 2011 is less concerned with gavel-banging and more concerned with how the complainant is treated during the reporting and grievance process. The outcome sought is the elimination of the hostile environment, if one exists, and maintaining a campus climate free from sexual harassment and violence -- not the termination, suspension, or expulsion of each accused individual.
It is not new for an institution to encourage reporting so that it may determine whether the report warrants action. "See something, say something." Surely not every forgotten bag contains explosives, but because citizen bystanders are not experts with bomb-sniffing German Shepherds, we are encouraged to report what we see.
Despite OCR’s recommendation for broad-based training and notification of sex discrimination definitions and procedures, students and employees are not experts in this area, and they are not expected to be equipped to make a final decision about whether actionable sex discrimination exists. That responsibility falls specifically to the Title IX coordinator or designee under the grievance procedures. By encouraging reporting of unwelcome conduct, the coordinator or designee also has the opportunity to spot patterns, which is a requirement of that job.
Imagine that 10 students report similar instances of sexual harassment (unwelcome conduct of a sexual nature) by another student or an employee that, individually, would not rise to the level of a hostile environment. Together, this conduct is a pattern of sexual harassment behavior that may create a hostile environment in a particular classroom, department or residence hall. Certainly, at the least, it warrants a conversation with and training for the accused individual.
The Education Department and higher education administrators are well aware of the First Amendment and academic freedom. Encouraging the campus community to report instances of sexual harassment and leaving the evaluation of such reports to designated experts is appropriate and lawful.
Andrea Stagg is an associate counsel in the State University of New York’s Office of General Counsel. The views expressed here are her own and do not necessarily represent the views of the State University of New York.
A successful alcohol risk reduction campaign, student health officials say, involves coordination across the university and the city -- and no dawdling. Getting it right can reduce incidents by the hundreds.