This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong -- and it’s important for both students and university administrators to understand why.
In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.
Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.
Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.
Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.
Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.
In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) -- an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.
Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising -- and hardly a mark of activism -- that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent -- which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.
Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom, Collegefreedom.org, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.
DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”
Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.
Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” -- and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.
The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.
The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” harassment policies like Temple’s provide “no shelter for core protected speech.”
If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.
William Creeley, Samantha Harris and Greg Lukianoff
Will Creeley is a lawyer and the director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. Samantha Harris is a lawyer and the director of Spotlight: The Campus Freedom Resource for FIRE. Greg Lukianoff is a lawyer and president of FIRE.
Sexual harassment has been and continues to be a real phenomenon. The evidence is clear. The destructive effects are also clear, sometimes for all the individual parties concerned. And the adverse effects are evident for the profession as a whole.
What is much less clear is what can be done to reduce, if not eliminate altogether this phenomenon. Some institutions have adopted mandatory training about sexual harassment for all department heads and/or for all faculty members. Last year, for example, the University of Iowa instituted such a requirement in the wake of a high profile sexual harassment case.
Such required training was at the heart of a dispute between a University of California at Irvine professor, Alexander McPherson, and his university. In response to Professor McPherson’s refusal to undergo the training, the university relieved him of supervision of the employees in his lab and threatened to withhold his salary. McPherson, who was never accused of harassment, indicated that he was offended by the requirement, that it was a violation of his principles, and that such training was called for only in the event that demonstrated problems had been found in a unit. In his words, “There is no more reason that I need to take sex harassment training than I need to take training on avoiding grand theft auto or murder or any other crime. The state is imposing this based on politics and that can’t be allowed.”
Writing as a scholar of higher education, and not as the new general secretary of the American Association of University Professors (a post I assumed January 1), I would offer three observations on this issue.
First is that there are other realms of activity in which faculty members must undergo required training, without any presumption of an offense having been committed. In research universities (where professors’ work routinely involves human subjects, though even there literary and some other scholars are not required to undergo such training), perhaps the most obvious example of this is the human subjects training surrounding research grants and activity. Prior to getting grants approved by the sponsored projects division of a university, an investigator must have undergone human subjects training. Although the training varies by university, there are common patterns nationally. Typically, for example, such training is online, and is not particularly rigorous, to put it mildly. Indeed, the format involves investigators taking an exam by reading some written passages and then answering questions about them. After each section or module the person finds out whether he or she missed too many questions in a section, and proceeds. If they have missed too many questions in a section they simply backtrack, get the same questions in a different order, and retake the quiz, until they pass. A widely used set of exams (which are specified to social/behavioral and biomedical research) are those offered by the Collaborative Institutional Training Initiative, which over 830 institutions and facilities (including a very large number of research universities, and indeed including the University of California at Irvine) utilize. The modules for the CITI quiz typically include three to six questions.
For the most part, although faculty complain about the inconvenience and irrelevance of the training, I do not know of anyone who would suggest that such training should be required only of investigators found to have violated the rights of human subjects. The more important questions of process and principle surround the institutional review board activities that regulate the approval of an investigator’s proposal. Here, serious questions have been raised about compromising investigators’ academic freedom to engage in certain types of research and to research certain subject matter. But the controversy is not, for the most part, about the human subjects training per se. Indeed, I would venture to say that for colleagues in the social and behavioral sciences, among the most common comments and complaints about human subjects training are that it is ineffective, that it does little by way of actually protecting human subjects and seems to be geared more to protecting the institution. The same might be said with regard to sexual harassment training, or any other “public” program of “training” that a college or university requires of its employees, including faculty members.
This leads to my second observation about the issue of institutions requiring sexual harassment training for faculty. What purpose does it serve? As Professor McPherson says of the requirement, “I have never heard the university advance a reasonable and convincing explanation.” In fact, there is no evidence that such one-time training is effective in reducing the activity in questions. Here, I would agree with Professor McPherson’s questioning of the rigor and effectiveness of such training. Thus, he notes that some of his colleagues log in to the online training, wait for a period of time, and then give random answers to questions. He also notes the regular distribution of materials to employees providing information regarding the rules and regulations surrounding sexual harassment, rendering in his view the online training unnecessary.
Whatever the nature of the online training, and the behavior of the participants, there is ample reason to question the impact of a single experience on behavior. Perhaps there is even greater reason to questions the behavioral impact of such an intervention when it is “virtual.” However, such formal training may nevertheless serve an important function for the organization, by providing legal and external “cover” for the college or university in question.
Here, it is worth noting that in 1995 the AAUP adopted a report (revised from a 1984 report that had been adopted) on this matter (“Sexual Harassment: Suggested Policy and Procedures for Handling Complaints”) that noted the incentive for institutions to adopt not only policies but also educational programs due to some Supreme Court decisions. As a scholar in the field of higher education, and as one who studies and writes about higher education organizations, I would go a step further. There is a large body of organizational research, known as institutional theory, which suggests that one of the main reasons for the emergence in organizations of such formal structures as required training programs is that it is a response to external concerns about a domain of activity and an effort to maintain or (re)establish the organization’s legitimacy in the eyes of the external world.
This need not be a cynical view, suggesting that neither institutional leaders nor the professionals engaged in developing and delivering formal training programs (whether in sexual harassment, human subjects, or in the area of teaching) are actually committed to affecting and improving behavior in the college or university. Rather, it is a view about the predominant and ultimate effects of such formal structures. It is much easier to publicly establish an office or an educational program to address some area of concern (such as sexual harassment) than it is to affect the private behaviors of professionals. Thus, when confronted with a potential challenge to an institution’s external legitimacy, because it is seen as violating some prevailing norms in the broader society, it makes sense for a president to support the creation of public, yet “virtual” structures such as online training modules in sexual harassment. It makes sense because at the very least it is a way of publicly demonstrating that the organization is trying to do something to prevent behavior that violates society’s norms and/or laws.
Given the above, and given the premise that sexual harassment has been and continues to be a phenomenon that we need to address and reduce, if not eliminate, how can such change be effected?
This question leads to my third observation, which is that the change we seek requires an exercise of political will and an excising of cultural ills. With regard to the former, the policies and laws are in place to enable supervisors to act fairly yet aggressively when sexual harassment takes place. If we provide and cultivate the mechanisms to enable the reporting of what research suggests is an underreported behavior, then the structures are in place if academic (and other) administrators at various levels will systematically and appropriately be receptive to reports of harassment, forcefully pursue those cases, and perhaps most important of all, be evaluated by their own supervisors according to whether they do so. With regard to the excising of cultural ills, we must all take responsibility to embed in our daily lives a pattern of interaction that clarifies, monitors, and maintains boundaries of appropriate behavior. Among the cultural ills we need to address head on is not only sexual harassment (and a range of hostile and chilly climate issues), but also the academic cultural norm of not confronting the bad behavior of peers. An argument could be made that as a profession academics are much better at disputing colleagues’ scholarly positions and ideas than we are at sanctioning the behaviors of peers.
Deeply embedded in the consciousness of most academics in the U.S. is a sense of the profound value of and right to due process involving review by one’s faculty peers, and to academic freedom. Both of these are not only found in the AAUP report noted above (as well as in its 1994 report on “Due Process in Sexual Harassment Complaints”), they arguably can be traced to the AAUP’s important work over the past century to establish and defend these rights. The association’s report on sexual harassment identifies harassment (based on gender, or on race/ethnicity, or other considerations, to which I would add sexual orientation) as being unethical and as “inconsistent with the maintenance of academic freedom on campus.” It is our responsibility as a profession, to embed in our consciousness and in our daily practice a vigorous commitment to and promotion of a profession free from sexual (and other forms of) harassment. Fulfilling that responsibility (which runs much deeper than public but relatively superficial, virtual steps like requiring everyone to undergo training) will better enable us as a profession to benefit and learn from increasingly diverse populations of colleagues and students, thereby more fully realizing our potential as an academy and as a society.
Gary Rhoades is general secretary of the American Association of University Professors.
Hardly a month goes by without another major foundation or education advocacy group reminding us of the peril our country faces if we don't send more students to college. The International Organization for Economic Cooperation and Development warns that the United States is slipping fast in international rankings. Among 25- to 34-year-olds, we rank no better than 10th in higher education attainment. Most striking among the measures is the "survival rate," the measurement of enrolled students who actually earn diplomas. Our students rank at the bottom of the developed world.
Visit the Web sites of the prominent foundations -- Gates, Lumina, Broad -- and you will see the same message that the U.S. Chamber of Commerce and corporate leaders such as Intel's Craig Barrett have been warning about for years: We need to broaden the college pipeline, and do it quickly. The latest study pointing out our educational weaknesses – and offering solutions – arrived earlier this month from the respected MDRC, which offered the Obama administration a 15-point plan for turning things around.
Interestingly, however, there's something all these groups studiously avoid talking about. These U.S. education numbers look bad primarily because the schools are failing boys. For the most part, those awful high school graduation numbers are driven by boys, not girls (32 percent of boys drop out, compared to 25 percent of girls). And the lackluster college graduation rates are due primarily to men floundering in college (men earn about 42 percent of four-year degrees). Given that men are far more likely to major in math and science – a special worry for the technical industries -- the chamber should be particularly concerned about men falling behind.
But the gender angle never gets mentioned. Popular, well-thought-out solutions, which include strengthening the high school curriculum, building better after-school programs and making college more affordable, skirt the obvious solution of reaching out to failing boys specifically. As for MDRC's 15-point plan – gender didn't get a mention.
Those omissions are striking, given that boosting the number of men earning college degrees should be the low-hanging-fruit remedy. Why the silence? The boys issue gets skipped because it has become a controversy; one of those he said/she said spats where the dialogue becomes downright unpleasant. In cases like this, the easy tactic is to steer clear. Interestingly, only in the United States is the boys issue considered so controversial. Countries such as Britain and Australia have been openly confronting the problem for years. There, the boy troubles are an issue to be studied and remedied, not something to squabble about.
All this gives our new education secretary, Arne Duncan, an opportunity: Why not do what Australia did and launch a federal probe into the boy problems? Duncan has the ideal vehicle, the freshly unveiled $15 billion grant program to reward initiatives that draw academic achievements from students less inclined to succeed. That would include boys.
In fairness to Duncan, he needs to know what he would be getting himself into. Why is this considered a controversy? That question can't be answered with absolute precision, but from years of reporting on this issue I have picked up on two threads. The first arose in 1992 when the American Association of University Women released a report about girls being shortchanged in schools, in part because teachers paid more attention to hyperactive boys jumping up to wave their hands in the air: Call on me! I was one of many education reporters who wrote about the report uncritically. That was a mistake. Hindsight tells us the schools-favor-boys research was shaky.
Regardless, the AAUW report unleashed a save-the-girls juggernaut. That girls' crusade ended up doing a lot of good by boosting female participation in advanced math and science classes. Today, girls dominate most of those courses. But the flawed research left behind an unfortunate legacy. Boys, who clearly needed the help more than girls, once again got ignored.
The second thread emerged in 2000 with the release of Christina Hoff Sommers' book, The War Against Boys. Sommers expertly laid out the case that boys, not girls, were suffering in school. Given that she was one of the first to tackle this issue, combined with the fact that The Atlantic serialized the book, Sommers had a unique opportunity to set the agenda about boys. Had Sommers stuck with her solid argument that boys were in trouble and then proposed solutions, it is conceivable the U.S. Department of Education would have launched a national investigation, identified the problems and funded experiments to arrest boys' academic slide. Today, the United States today could rank with Australia at the forefront of fashioning solutions to help boys.
But that's not how things played out. Instead of focusing solely on boys, Sommers devoted most her book to attacking feminists, blaming them for the boy troubles. Naturally, the feminists fought back, fingering Sommers as the tip of the spear of what they dubbed a "backlash" movement, those pushing back against the hard-won gains of women. Who could blame the feminists? After all, the book's subtitle was, How Misguided Feminism Is Harming Our Young Men.
Since then, everything's been pretty much downhill. If boys are suffering any problems, argue feminists, those problems are limited to minority boys and rooted in racism and poverty, not gender.
Higher education leaders, who feel they are blameless in the boy troubles and have reaped the benefits of ever-rising numbers of female applicants, look the other way. That is proving to be a mistake. High-tuition second and third-tier private colleges that tolerated significant gender imbalances are now under stress from the recession. Today, they may be wishing they had stepped forward to try to solve the male college pipeline problem, which goes well beyond poor and minority boys.
Elite colleges generally don’t suffer gender imbalances, especially those offering boys admissions preferences. Plus, their faculties remain fixated on the Larry Summers fiasco at Harvard. His musings over why fewer women occupy top academic spots politicized campus gender issues, leaving professors likely to embrace the viewpoints of the feminists, who argue that women, not men, are the aggrieved parties in higher education.
Given all this, it’s easy to understand why groups such as Gates and the U.S. Chamber prefer to duck. Who can blame them? Problem is, ducking does nothing to solve the very problem they raise, the slipping status of the United States as an educated workforce – a phenomenon driven mostly by boys. Secretary Duncan, you have a unique opportunity to get us beyond this political divide. Settle this issue once and for all. Boosting college graduation rates is an issue too important to be mired in this controversy.
Richard Whitmire, president of the National Education Writers Association, blogs at whyboysfail.com
College admissions directors curious about the experience of touching a third rail can review what happened when the president of the University of Alberta suggested that Canadian males, including white males, needed a helping hand.
She got fried ... by her own students.
Last month, President Indira Samarasekera pointed to the preponderance of women in higher education in Canada (three female undergraduates for every two males) and suggested that perhaps males could need some extra attention. "We’ll wake up in 20 years and we will not have the benefit of enough male talent," said Samarasekera, a metallurgical engineer originally from Sri Lanka. “I’m going to be an advocate for young white men, because I can be,” she added, pointing to her Nixon-to-China status as a minority woman advocating for men.
A fair number of her students were not happy. Within 24 hours the campus was awash with posters poking fun at the notion of women taking over higher education. “Women are attacking campus,” read one. “Only white men can save our university! Stop the femimenace.”
Humorous, perhaps, but here’s why this is not funny to college officials in the United States: currently, the University of Alberta grants no admissions preferences to men – unlike scores, perhaps even hundreds, of colleges in the United States that for years have been turning down women for less qualified men.The preferences many colleges give to men are far less formal and less debated than those that help minority applicants, or women applying to some programs. But many, many admissions offices routinely look at male applicants’ test scores and grades with lower expectations than they have when viewing those of female applicants.
What happened to President Samarasekera is just a taste of what’s in store for these colleges when thousands of female high school students and their parents discover that the college of their dreams is a farther reach for them than for the slacker boy next door.
And they will find out, because in roughly six months the U.S. Commission on Civil Rights will release its findings on the breadth of the preferences practice. Among higher education insiders, there’s not much mystery to the investigation: favoring men is an open secret at private, four-year colleges, where there’s no legal penalty for helping men. Actually, it’s even done by some public colleges willing to roll the dice in the hope they won’t get sued.
How, you ask, has this remained a secret so long? Because all the interested parties have signed off on the conspiracy.
Feminist groups studiously ignore the issue of women dominating college campuses; it drains credibility from their claim as a disadvantaged group in need of redress. The day after the recent commission announcement it was investigating bias against women, groups such as National Organization for Women and the American Association of University Women were silent on the news -- despite this being an issue presumably dear to their hearts.
In a later comment to U.S. News & World Report, the AAUW’s director of public policy described the probe as missing the point. “We need to help impoverished boys and girls to improve educational outcomes and have equal opportunity," said Lisa Maatz.
As for the other interested parties, conservative groups prefer to sue on the issue on racial preferences and have not historically flown to the defense of women. College officials? They aren’t going to flush themselves into the open on this issue. Most female students want to see more men on campus, regardless of how they get there. High school senior girls are generally unaware and unorganized. And men, well, they’re pretty much oblivious ... and when they land on gender unbalanced campuses, they are, well, delighted.
The commission report will change all that, leaving colleges with a simple question: how do we get in front of this public relations briar patch?
The obvious answer, shutting down admission preferences granted males, is not workable. The fear among college officials about a campus swinging more than 60 percent female exceeds the fear of getting sued. And in all honesty, until K-12 educators can "fix" the boy troubles, which arise in the very early grades, men need that extra help getting into college.
So what’s a college to do? There’s one big step that would make a huge difference: make it acceptable to talk about the boy troubles. Let the public know that boys are not just enrolling at lower rates but arriving on campus less prepared than the girls. Currently, it’s considered politically incorrect to even mention the issue. Don’t men rule the White House and Wall Street?
As a result, the foundations invested in growing the college enrollment and graduation rates, along with the U.S. Department of Education, churn out report after report about how to accomplish those goals, breaking down the numbers by poverty and race, without mentioning the obvious solution: boost the rates at which men enroll and graduate from college.
Indira Samarasekera had it right. For college officials, this should be your Nixon-to-China moment. Only presidents and admissions directors, most of them liberals in good standing, can raise this issue and not get hammered. Dr. Samarasekera took a whacking but she’s not backing down. Male failings in higher education are adding up to a "demographic bomb," she told the press after the flap.
If Dr. Samarasekera can say that -- and survive -- so can you. As a pathway to get in front of the approaching furor, this is your best shot.
"I was really worried about coming out as transgender to anyone else because I knew there weren’t any policies. I was so afraid that my school would ban me from my sport and that was the only thing I had at the time. I finally decided to come out my senior year of college because I was going down a slippery slope and I didn't think I could pull myself out if I didn't come out."
--A transgender former college athlete
Many transgender athletes relate similar experiences that make their participation on college teams painful and frustrating: An athlete is called "she/he" and "it" by opposing players during a game. An athlete stops playing sports in college because it becomes too uncomfortable to use the locker room. An athlete has to change clothes in a utility closet separate from the rest of the team. An athlete quits the team because it becomes too painful to keep reminding coaches and teammates about the athlete's preferred pronouns. None of the institutions or athletic conferences in which these athletes compete have a policy governing the inclusion of transgender student-athletes on sports teams.
These descriptions and many others like them characterize the experiences of many young people who identify as transgender and want to play on their colleges' athletic teams. Transgender is a broad term used to describe the experiences of people whose gender identity and expression do not match the sex they were assigned at birth. Some people transition to live as their preferred gender by changing their names and the pronouns they use to refer to themselves. They express their preferred gender through choice of clothes, hairstyles and other manifestations of gender expression and identity. Some transgender people undergo reconstructive surgery or take hormones to make their bodies more congruent with their internal sense of themselves. Others do not.
Since the increased visibility of a transgender rights movement in the 1980s and a school-based LGBT "safe schools" movement in the 1990s, more young people have the language and information they need to identify the gender dissonance they experience between the sex they were assigned at birth and the gender identity that they know to be true for them. They are increasingly identifying themselves as transgender and they are doing it at earlier ages. In addition, parents are much more likely to support their transgender children and advocate for them in schools. As more states add "gender identity and expression" to non-discrimination legislation and as these legal protections are applied to schools, transgender students and their parents have increased leverage to ensure that educational institutions address their needs. K-12 school and college educators find themselves playing catch up as they learn to accommodate the educational needs of trans-identified students and protect them from bullying and harassment in school or at college.
Many of these young people want to play on their schools' or colleges' sports teams. As a result, athletic directors and coaches increasingly find themselves unprepared to make decisions about what team a transgender student is eligible to play for. As the number of transgender students who want to play on school sports teams increases, school athletic leaders must identify effective and fair policies to ensure their right to participate. Though the issue of accommodating the needs of transgender students, staff and faculty in higher education has received attention, it has not been adequately addressed in athletics. Many colleges have changed policies on access to bathrooms, residence halls or face controversy because they have not done so. In athletics, conversations about accommodating transgender students have only recently begun.
For the most part, athletic teams at high schools and colleges are segregated by sex and divided into men’s and women’s teams. For transgender students, determining on which gender’s team, if any, they will be allowed to play can be a difficult process fraught with misconceptions, ignorance and discrimination. Few high school or collegiate athletic programs, administrators or coaches are prepared to address a transgender student’s interest in participating in athletics in a systematic, fair and effective manner. Few athletes have been given the information that would prepare them to participate on a team with a teammate whose gender identity is different from the sex they were assigned at birth.
The vast majority of school athletic programs have no policy governing the inclusion of transgender athletes and athletic staff have no idea how to accommodate a transgender student who wants to play on a college sports team. Even basic accommodations can be confusing, such as what pronouns or name to use to refer to that student, where that student should change clothes for practice or competition, what bathroom that student should use, or how to apply team dress codes.
Washington is the only state that has a policy identifying the process for enabling transgender students to participate in high school athletics. The National Collegiate Athletic Association does not prohibit transgender students from participating in NCAA sponsored events, but recommends that NCAA member institutions use a student’s official identity documents (birth certificate, driver’s license or passport) to determine whether a student-athlete is eligible to compete on the men’s or women’s team. Because of wide variations in state requirements for changing identity documents, however, the NCAA recommendation unintentionally creates an inequitable situation depending on where the student is enrolled.
Applying the 2004 International Olympic Committee policy governing the participation of transsexual athletes in IOC sanctioned events to collegiate athletics is problematic for a number of reasons. The IOC policy, though pioneering, is criticized by knowledgeable medical experts and transgender advocates for requiring genital reconstructive surgery as a criterion for eligibility. Moreover, applying the IOC policy to collegiate sports does not take into account the eligibility limits placed on individual athletes or the age and developmental needs of this age group.
After a number of informal discussions with collegiate athletic leaders and transgender students who want to participate in sports, the National Center for Lesbian Rights Sports Project and the Women’s Sports Foundation initiative, It Takes A Team! joined forces to organize a national meeting on these topics in the fall. Two of the guiding principles for the discussion were 1) Participation in interscholastic and intercollegiate athletics is a valuable part of the education experience for all students and 2) Transgender student-athletes should have equal opportunity to participate in sports.
The 40 participants, including representatives from the NCAA and Interscholastic High School Athletic Association leaders, were an impressive group of experts from a range of disciplines — law, medicine, sports, advocacy, and athletics — all of whom share an interest in transgender issues. The goals were to identify best practices and develop model policies for high school and collegiate athletic leaders to ensure the full inclusion of transgender student-athletes. A report will be issued in 2010 outlining specific recommendations for high school and collegiate athletic programs.
Specific issues discussed included:
From a medical perspective, what are the salient factors that should be used to determine for which team (women’s or men’s) a transgender student is eligible to participate?
From a policy and school regulation perspective, how can we develop policies governing the participation of transgender students in athletics that adhere to state and federal laws protecting students from discrimination based on gender identity and expression?
From an athletic perspective, how can we address concerns about "competitive equity" or "unfair advantage" while acknowledging the broad diversity of performance already exhibited within both women’s and men’s sports?
From an education perspective, how can we ensure that athletic administrators, staff, parents of athletes and student-athletes have access to sound and effective education related to the participation of transgender students in athletics?
In our forthcoming report, we provide recommendations to address each of these questions.
The most powerful information came from the transgender student-athletes in attendance, who detailed their challenges and triumphs and the importance of high school and collegiate sport participation. Their stories reinforced the necessity of developing sound policies and practices that enable transgender student-athletes to play the sports they love in an environment where their gender identity and expression are accepted as one more aspect of the diversity typical of school and college sports teams.
Pat Griffin and Helen Carroll
Pat Griffin is director of It Takes A Team. Helen Carroll is director of the National Center for Lesbian Rights Sports Project.
Sometime in March, an e-mail went viral among University of Southern California undergraduates. The e-mail outlined a series of guidelines for tallying and scoring sexual conquests. While engaged in the expected language of misogyny, the e-mail was also rampant with racism, suggestions to incapacitate "targets" with alcohol, and most disturbingly of all, an assertion that "Non-consent and rape are two different things." As one of a string of Internet-related sex(ism) scandals that have emerged at major universities around the world, this e-mail proved a catalyst for considering the ways that such overtly troubling language reverberates in the university and how a university community can best balance a commitment to free speech against the need to curtail hate speech and sexual violence.
I am an assistant lecturer in the Writing Program at USC as well as a student in the English Ph.D. program, and so I felt doubly frustrated with the proliferation of such language, both on behalf of my students, and perhaps selfishly, for myself. The class I am currently teaching is affiliated with a course in Studies of Women and Men in Society (SWMS), so it was pertinent to the work we'd been doing, particularly as we had been having an extended conversation about the power and effectiveness of parody. We had been interested in the critical distance between an argument as it is literally presented and as it is meant to be understood as required for ironic understanding. If this e-mail, so clearly engaged with the language of hate, was written as a parody of the cartoonishly predatory college male, at what point can the content of it be considered dangerous, particularly considering the non-consent/rape passage? Couldn’t seeing the e-mail as hate speech displace the original purpose? How much does it matter what the author’s intention was, I asked, if a reader sees it as hate speech?
These questions seemed particularly pertinent considering the fact that the Daily Trojan’s report on the e-mail included nearly a dozen comments pointing out that it had been written as a joke and that those reacting negatively were taking it far too seriously. Perhaps much of the fixation on this point of the alleged humor was due to possible connections between the e-mail and the university’s powerful and popular Greek system. The email was initially attributed to Kappa Sigma fraternity members, but Intrafraternity Council investigations have now attributed authorship to a non-fraternity member who, in turn, has identified the origin of the email as from another university entirely. Elsewhere, students claiming to have been witness to the early drafting stages of the email attribute it to a named USC student. Despite it being the primary focus of much of the response to the e-mail, the authorship and origin of the email are ultimately of little consequence.
Instead of attributing blame for the e-mail to a particular fraternity or student, we should be talking about the power and influence of such rhetoric as it reverberates within a campus and in the greater public consciousness that defines a university’s reputation. This is a conversation we’ve had before and it’s one we will have again, but in making the conversation more public and more explicit in its goals, we at least allow it to develop. Indeed, troubling scandals pop up fairly consistently in national and international media, aided by the proliferating influence of the Internet.
A very similar series of e-mails circulated through University of Oxford’s Penguin Club, an all-male drinking club, in Spring 2010, though in this case, specific female students from Hertford College were named, ranked, and again referred to as "targets." All 15 members of the Penguin Club were suspended, though the administration did not acknowledge a connection between the suspension and the emails.
In my class discussion regarding the USC e-mail, students’ reactions were varied, though almost consistently negative. Some were colorful ("It made me vomit in my mouth"); some had been sent the e-mail a full week before I had; and some were hearing of it for the first time and clustered around their laptops to read snippets of it to each other. The conversation was lively, and students who are normally quiet chimed in, including one who noted that she was not upset at all by the e-mail because she already knew this was exactly how college students talked all the time. While it is not entirely surprising to encounter an apathetic college freshman, the fact that her apathy stemmed from desensitization to racist, misogynistic, and, most disturbingly, rape-apologetic rhetoric was disheartening.
This apathy, more than the content of the e-mail, is indicative of a larger systemic problem. Universities are not unique in their isolation, and such language certainly proliferates in other communities, but never has it been more essential to have an open dialogue about the stakes of such rhetoric. The aftermath of such publicly sexist and racist language needs to include forums more open than an Internet comment board for conversation. Panel discussions with representatives from student groups, administration, and faculty would allow a space for conversation and would celebrate the intelligence and responsibility of the students implicated by association with those perpetuating such rhetoric. When a university administration fails to respond openly and promptly to a now-public comment invalidating consent as a defining difference between consensual sex and rape, even one that was written for a private audience, it becomes complicit in a culture that refuses to examine the complexities of rape and consent and, as a result, perpetuates silence and fear. The university policies and procedures, as well as local laws and avenues for reporting and responding to sexual assault, should be reiterated publicly and frequently, not just as instigated by such an event.
Of course the weight of response cannot be expected exclusively from the administration. Not only do students need to be actively responsible for a greater community of respect and communication, but also to recognize that such language of disrespect is not limited to these well-publicized moment -- and that when they are put to public scrutiny, they reflect as much on those who are completely uninvolved as on those who directly formulated the rhetoric, as well as reflecting on the educational environment of the university. By examining the responses I’ve witnessed, I do not mean to suggest that a university is responsible for policing its students’ language or holds the exclusive responsibility for responding, but that ignoring the opportunity to perform outreach at such moments is a disservice to its students, particularly when the size of the community discourages them from organizing independently.
Samantha Carrick is a Ph.D. candidate in the department of English at the University of Southern California.
In a highly unusual move, the presidents of three leading universities issued a statement Thursday to challenge the views of Lawrence H. Summers, the president of Harvard University, on women and science.
Summers has apologized for his statements, in which he suggested that "innate differences" between men and women may be a reason why there are so few women in science.