Recently the Education Department issued a controversial "blueprint" for dealing with sexual harassment that could expose colleges that follow it to First Amendment lawsuits and redefine every flirtation and request to go out on a date as potential sexual harassment. It rejects decades of court rulings by declaring that any unwelcome speech or conduct of a sexual nature is harassment, even if it would not offend a reasonable person.
The Education Department's radical new position is set forth in a May 9 letter involving the University of Montana. The department criticized the university for defining sexual harassment based on previous Supreme Court rulings, including a 1993 decision that said conduct is not harassment if it does not offend a "reasonable person," and a 1999 ruling in Davis v. Monroe County Board of Education that emphasized that conduct must be "severe, pervasive, and objectively offensive" to constitute illegal sexual harassment under Title IX.
In provisions that it says will "serve as a blueprint for colleges and universities throughout the country," the Education Department declares that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature,'" including "verbal conduct," even if it is not "objectively offensive" or severe enough to create a hostile environment.
In a guide to help colleges comply with Title IX, the Education Department has stated that "conduct of a sexual nature" includes many kinds of speech, such as "circulating or showing e-mails or Web sites of a sexual nature," "displaying or distributing sexually explicit drawings, pictures, or written materials," and "telling sexual or dirty jokes."
Under those broad definitions, if a professor discusses a sexual issue, like HIV transmission through anal sex, "making one of his 500 students uncomfortable," as the education writer Joanne Jacobs puts it,"he's a sexual harasser."
The government says the narrower definition of harassment laid down by the courts applies only in sexual-harassment lawsuits, not in its Title IX investigations or the standard colleges must apply to their students or faculty. Colleges must declare "any unwelcome conduct" to be a reportable offense.
And the Education Department will not follow the courts' definition of harassment in its investigations of colleges, either. In "administrative enforcement," it will find colleges liable even for conduct that is not "severe," as long as it is "persistent" or "pervasive."
The government ignores the fact that the First Amendment protects even indecent speech that a college listener finds "unwelcome." In DeJohn v. Temple University, (2008), a federal appeals court struck down a hostile-environment sexual-harassment code as overly broad, even though it was much narrower than the Education Department's recent definition. The court rejected the code's harassment definition because it reached beyond conduct that was "objectively" harmful, to speech that was merely "offensive" to some. In Dambrot v. Central Michigan University (1995), a racial-harassment code was struck down as unconstitutionally vague because it restricted speech based on listeners' "subjective" reactions.
The Education Department's Office for Civil Rights cannot order schools to restrict free speech. The courts made this clear in 1978 when they ruled that the Office for Civil Rights had violated the First Amendment by pressuring the East Baton Rouge Parish School Board into kicking out the Ku Klux Klan because of its racist views. Nor can the office use investigations to goad colleges into restricting speech. In White v. Lee (2000), an appeals court held civil-rights officials liable under the First Amendment when they investigated citizens for "discrimination" after they spoke out against a minority housing project.
The Education Department's rejection of the "reasonable person" standard contradicts its own past policies that applied when I worked in its Office for Civil Rights. In 2003, it rejected the idea that all unwelcome speech is harassment, emphasizing that harassment "must include something beyond the mere expression of views ... that some person finds offensive. ... The Office for Civil Rights' standards require that the conduct be evaluated from the perspective of a reasonable person."
Similarly, the Clinton administration said in January 2001 that the definitions of harassment used by the Office for Civil Rights and the Supreme Court's Davis decision were "consistent" and embodied "the same concept" of objectively "serious" misconduct. By suddenly broadening the definition of sexual harassment, the Education Department has violated the Administrative Procedure Act, which requires notice and the opportunity for the public to comment before new legal obligations can be imposed. It also flouts the Supreme Court, which deliberately defined harassment more narrowly for students than for workers.
Banning all "unwelcome" sexual speech would make every sex-education class sexual harassment when it offends a squeamish student. Sexual-harassment charges were brought against a sex educator when she told a sexual joke to sum up the need to wear condoms. Unlike the Education Department, the courts have rejected the idea that such humor is sexual harassment merely because it is "unwelcome." In Brown v. Hot, Sexy, and Safer Productions (1995), an appeals court rejected a harassment lawsuit over graphic humor in a sex-education class, since an "objective person would understand that" the "sexual commentary was intended to educate the students," not harass them.
Defining any romantic overture as harassment merely because it turns out to be unwelcome—even if it only occurred once, and was not repeated after its unwelcomeness became known—has dire implications for dating. Since no one is a mind reader, the only way to avoid ever making an "unwelcome advance" is to never ask anyone out on a date. That undermines freedom of intimate association.
In Alice in Wonderland fashion, the government's letter suggests that punishment may be required before a disciplinary hearing (violating due process). It states that "appropriate steps" to take "prior to the completion" of a Title IX sexual-harassment investigation "may include ... disciplinary action against the harasser." It also sends conflicting signals about whether students must receive "disciplinary consequences," or merely a warning, for a single instance of nonsevere, "unwelcome conduct."
By defining speech as reportable "sexual harassment" even when it does not offend a reasonable person, the Education Department has cast a dark cloud over academic freedom and the ability to debate important issues about sexual morality, norms, and roles that may offend some listeners. This cannot be reconciled with the Constitution: As the Supreme Court declared in Keyishian v. Board of Regents, the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom," which is "peculiarly the marketplace of ideas."
Hans Bader is a lawyer for the Competitive Enterprise Institute.