Federal Title IX Enforcers Effectively Define Dating and Sex Education as “Sexual Harassment”

by Hans Bader on May 10, 2013 · 8 comments

in Legal, Nanny State, Personal Liberty

No one would believe you if you made this up, but it’s now actually happened: The Justice Department and the Education Department’s Office for Civil Rights now have effectively defined dating and sex education as “sexual harassment.” The definition is found in a May 9 Title IX Letter of Findings and Resolution Agreement involving the University of Montana. In a radical departure from Title IX jurisprudence, the federal government declares that “any” unwelcome sexual speech or other conduct is “sexual harassment” regardless of whether it is severe, repeated, or pervasive, and regardless of whether it would offend a reasonable person. In its findings, it rejected narrower definitions rooted in federal court rulings, declaring that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” (The federal government has also effectively mandated “unconstitutional speech codes at colleges and universities nationwide,” notes the Foundation for Individual Rights in Education.)

By contrast, the Supreme Court has ruled that to constitute illegal sexual harassment, sexual advances or other verbal or physical conduct must be severe and pervasive, create a hostile environment, and be “objectively offensive” to a “reasonable person.” See, e.g., Davis v. Monroe County Board of Education (1999). According to the Supreme Court, isolated instances of trivially offensive sexual speech are not illegal, and are not considered “sexual harassment” in even the broadest possible sense: the conception of harassment that applies under federal law’s anti-retaliation provisions, which allow employees to sue when they are disciplined for reporting what they in good faith believe to be sexual harassment, even if does not rise to the level of sexual harassment in a narrow legal sense. See Clark County School District v. Breeden (2001).

The definition of “sexual harassment” that the federal government demands that the University of Montana adopt is far broader than the sexual harassment policies declared unconstitutionally overbroad by federal appeals courts in DeJohn v. Temple University, Saxe v. State College Area School District, and McCauley v. University of the Virgin Islands, which made clear that there is no “sexual harassment” exception to the First Amendment.

The University of Montana applied federal definitions of sexual harassment, that exclude trivially offensive conduct and things that do not offend reasonable people, in its internal sexual harassment policy. The Justice and Education Departments took issue with this, saying that conduct, or speech on sexual topics, is harassment even if “it is” not “objectively offensive”:

Third, Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. This policy provides examples of unwelcome conduct of a sexual nature but then states that “[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was “unwelcome conduct of a sexual nature” and therefore constitutes “sexual harassment.” . . .

sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.” (Findings at pg. 9)

It also made very clear that this broad rule reaches speech — “verbal conduct” — not just physical conduct:

Sexual harassment is unwelcome conduct of a sexual nature7 and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. (Findings, pg. 4)

Findings (May 9 letter), at pg. 4, http://www.justice.gov/opa/documents/um-ltr-findings.pdf

In short, sexual harassment is defined to include “any” speech or other verbal conduct even if it would not offend a reasonable person, but rather only is offensive from the subjective viewpoint of a hypersensitive person. Making a sexual or racial harassment policy entirely subjective makes it unconstitutionally vague on its face. See Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (racial harassment policy void for vagueness where it required “subjective reference”); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996) (voiding harassment policy as applied to professor’s speech on vagueness ground; policy must provide fair notice).

Banning all sexual speech that is offensive to any listener would effectively ban sex education and sexual humor, making every sex education class “sexual harassment” when it offends a squeamish student. Some students are made uncomfortable by such topics: for example, sexual harassment charges were unsuccessfully brought after sex educator Toni Blake told a joke while demonstrating a condom. Unlike the Education Department, the courts have rejected the idea that such humor inherently constitutes “sexual harassment.” See Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995) (students sued over comments in sex education class; court ruled that since sexual speech must be “severe” or “pervasive” and create “hostile environment” to constitute sexual harassment, the lawsuit should be dismissed; it ruled that sexual humor in the sex education lecture about “erection wear” and anal sex was not enough for liability, since a reasonable person would not have viewed the comments as intended to harass); Black v. Zaring Homes, 104 F.3d 822 (6th Cir. 1997) (jokes about “sticky buns” were not bad enough to constitute sexual harassment, despite being unwelcome.).

Defining “any” romantic overture or sexual speech as “harassment” based purely on subjective reactions has dire implications for dating. It defines a single, unrepeated, civil request to go out on a date as “sexual harassment” even if the requester never makes the request again after learning that it was “subjectively” unwelcome.

That may effectively ban dating (since no one is a mind reader, and the whole point of asking someone out on a date is because you don’t know before asking whether they would be interested without first asking). Such a de facto ban on dating violates freedom of intimate association. Even banning dating between certain people can violate freedom of intimate association; here, the definition would define all offers to go out on a date as potentially sexual harassment unless the offerer is omniscient. See Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984) (appeals court ruled that freedom of intimate association was violated by restriction on public employee dating a single individual, the relative of a criminal suspect.).

Perversely, the government suggests that punishment may be required BEFORE a disciplinary hearing, reminiscent of Alice in Wonderland‘s sentence first, verdict afterwards“:

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.

Letter of Findings (May 9 letter) (boldface added), at pg. 7, http://www.justice.gov/opa/documents/um-ltr-findings.pdf.

A passage on page 2 of the settlement may be of concern to social conservatives. Its demand conflicts with Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), which struck down a harassment policy challenged by an Evangelical Christian because it forbade certain criticism of homosexuality. It implies that the same zero-tolerance standard that applies to sexual speech and dating requests also applies to speech about the transgendered:

The term “gender-based harassment” means 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.

See pg. 2, Resolution Agreement (May 9, 2013), http://www.justice.gov/crt/about/edu/documents/montanaagree.pdf .

While defining a vast array of innocuous human speech and activity as “sexual harassment,” the federal government sends contradictory signals about whether a University may have the discretion not to formally punish students for some of it if it is not repeated. First, it states in footnote 11 of its Findings that “If the University is defining ‘sexual harassment’ as conduct that creates a hostile environment because a student or employee may face disciplinary consequences upon a University finding that sexual harassment occurred, then the University should clarify its discipline practices rather than define ‘sexual harassment’ too narrowly, which will likely discourage students from reporting sexual harassment until it becomes severe and pervasive.” But then, on page 22, it condemns the the University of Montana for stating (in a verbatim quote, by the way, from the Education Department’s own 1997 definition of “sexual harassment”) in its university harassment policy that “conduct becomes sexual harassment when it is “sufficiently severe or pervasive” enough to “unreasonably” interfere with a person’s work or educational performance.” The federal government complains, “this is the standard for hostile environment — not the definition of sexual harassment. Sexual harassment is unwelcome conduct of a sexual nature,” and it says that not recognizing sexual harassment could include non-severe conduct that does not offend a reasonable person supposedly violated the University’s duty to apply “the appropriate legal standards” and failed to recognize “the need to stop the harassment” and “the need to take steps to prevent harassment from recurring.” This casts a cloud over academic freedom and the ability to discuss topics that are offensive to some listeners.

Hans Bader May 11, 2013 at 11:43 am

The government’s attempt to define “sexual harassment” in purely subjective terms runs afoul of the Supreme Court’s admonitions that behavior which is not “objectively offensive,” and does not offend normal people, is not “harassment” at all, and is entirely beyond the purview of sexual-harassment law, even if it involves “intersexual flirtation.” See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998) (“The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.’. . .We have always regarded that requirement as crucial . . . to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as . . . intersexual flirtation-for discriminatory “conditions of employment.”), quoting Harris v. Forklift Systems, 510 U.S. 17, 21 (1993), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

DJ May 13, 2013 at 3:37 pm

I’m not in any position to quibble with this, but surely it’s worth pointing out that DOJ and OCR (and federal courts!) distinguish the standard for discrimination that they use in so-called “administrative enforcement” of Title IX (like this here), and civil actions for money damages in cases like Davis. The fact is, DOJ and OCR don’t use the “objectively offensive” formulation; instead, they simply ask whether the harrassing conduct is “sufficiently severe, pervasive, or persistent so as to interfere or limit a student’s ability to participate in” the school’s program or services. This is the standard the feds have used since well before Davis. And in the nearly 15 years since.

So if this settlement constitutes a real change of course, I’d like to understand how if differs from previous administrative enforcement actions. It’s not enough to just point out that it differs from Davis. Because of course it does: Davis is about dough, not about enforcement.

Hans Bader May 14, 2013 at 6:19 pm

Yes, it is a real change of course; and yes, it does differ from previous administrative enforcement actions in earlier administrations; they historically HAVE used the “reasonable person” or objective formulation, as I can attest as a former Education Department lawyer. Regional offices of the Office for Civil Rights have rejected claims by hypersensitive complainants over conduct that offended them but would not offend a reasonable person.

The “reasonable person” formulation is set forth in the very cases that OCR used to draw up its harassment guidelines. (62 Federal Register 12034 (1997); see other OCR guidance citing Harris v. Forklift Systems (1993), which mandated a “reasonable person” test). While the Supreme Court’s subsequent Davis decision heightened the burden of showing harassment — by using a “severe AND pervasive” standard rather than the workplace “severe OR pervasive” standard — it did nothing to call into question the need to show the conduct would offend a reasonable person rather than just a hypersensitive person. Indeed, the Davis decision expressly required a showing of “objectively offensive” conduct.

While the Office for Civil Rights has suggested that the notice requirement is different administratively than in private lawsuits under Davis, meaning that only negligence by a school as opposed to deliberate indifference need be shown (given spending-clause considerations in private lawsuits), it has never argued that it rejected the definition of discriminatory harassment laid down by Davis. Even if it had the power to adopt a different definition of harassment through notice and comment rulemaking, it has never done so, so the definition that applies is logically the same.

At least one court rejected an agency’s ad hoc attempt to broaden the definition of harassment. See DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996) (appeals court reversed HUD’s finding of hostile housing environment, and not according it deference where it deviated from the appeals court’s own past guidance as to what constitutes harassment.).

The Supreme Court has not squarely addressed this issue, although it rejected the government’s attempt to redefine discrimination under Title IX’s sister statute, Title VI, in private litigation. See Alexander v. Sandoval (2001) (invalidating educational and other disparate-impact causes of action under Title VI for defining discrimination differently than the Supreme Court previously had).

Hans Bader May 13, 2013 at 5:42 pm

Disclosure: I once worked as an attorney for the U.S. Department of Education, Office for Civil Rights. I also practiced education law for years, representing students, faculty, and, less frequently, educational institutions (I helped represent a private college in Maryland, and a school board in Louisiana).

NickHentoff May 16, 2013 at 5:23 am

Hans, very cogent analysis and argument, as usual.

Who are the DOJ and DOE officials who are driving the policy behind the coerced adoption of the speech codes. Are they career officials or political appointees? Are the policy directives on this coming from the White House, or are these more “rogue” civil servants running amok in reckless disregard of the Bill of Rights?

Hans Bader May 26, 2013 at 11:00 pm

The DOJ officials behind the speech code demand are political appointees, I believe.

On another note, I state above that a hostile environment must be shown for harassment liability. This is true, although in the school setting, it is a bit of an understatement. In the school setting, more than a hostile environment is required to recover damages for sexual harassment, since although a “hostile” “environment” is all that is required in the workplace (under the Supreme Court’s Harris decision), n the school context one must show that the conduct is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school,” to quote the Supreme Court’s ruling in Davis v. Monroe County Board of Education (1999). Denial of access can be a tougher thing to show than a mere “hostile environment.”

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