Civil Liberties

How Sexual Harassment Codes Threaten Academic Freedom

'Gender justice' warriors in the Department of Education are pushing campus officials too far.


R Kurtz/Flickr

In its zeal to spread "gender justice," the Department of Education's Office of Civil Rights (OCR) threatens to stifle academic freedom and infantilize women, says feminist legal expert and New York Law School Professor Nadine Strossen. At a recent talk at Harvard's Shorenstein Center on Media, Politics and Public Policy, the former American Civil Liberties Union head warned that current campus policies to curb sexual harassment are overbroad and dangerous. And while "safety"-mongering students deserve some of the blame, bureaucrats are the biggest progenitors of this paranoid style in American academia. 

"By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools like Harvard, to adopt sexual misconduct policies that violate many civil liberties," Strossen said.

Sexual misconduct is an umbrella term under which fall school rules against sexual assault, sexual harassment, intimate-partner violence, voyeurism, and stalking. While much of the recent focus in this realm has been on sexual violence, school sexual harassment policies also deserve some scrutiny. 

"Over the years, there have been many types of overly broad sexual harassment policies," explains Samantha Harris, director of policy research for the Foundation for Individual Rights in Education (FIRE). "FIRE has actually had some success in getting schools to roll these back over the years."

But in 2013, an OCR and Justice Department investigation into sexual misconduct at the University of Montana yielded "a findings letter which they made public and which they described as a blueprint for colleges and universities," says Harris. "And that blueprint contained a very broad definition of sexual harassment." 

As defined by the OCR, sexual harassment is "any unwelcome conduct of a sexual nature." This leaves out two major elements of standard sexual harassment definitions: that the conduct be offensive to a "reasonable person," and that the conduct be severe and pervasive. Under the OCR definition, therefore, any mention of something sexual could be deemed sexual harassment if anyone at all takes offense.

In practice, this has resulted in colleges cracking down on professors and lecturers for offering even the mildest sexual content in their classrooms—even in courses specifically about sex. "Anecdotally, I see this current moral panic over sexual harassment … playing out more on the faculty side," says Harris. "We see a lot of faculty whose speech has been chilled." 

In her Harvard speech, Strossen laid out several recent examples of the "sexual harassment" that's been targeted by colleges:

The Naval War College placed a professor on administrative leave and demanded that he apologize because during a lecture that critically described Machiavelli's views about leadership he paraphrased Machiavelli's comments about raping the goddess Fortuna. In another example, the University of Denver suspended a tenured professor and found him guilty of sexual harassment for teaching about sexual topics in a graduate-level course in a course unit entitled Drugs and Sin in American Life From Masturbation and Prostitution to Alcohol and Drugs.

A sociology professor at Appalachian State University was suspended because she showed a documentary film that critically examined the adult film industry. A sociology professor at the University of Colorado was forced to retire early because of a class in her course on deviance in which volunteer student assistants played roles in a scripted skit about prostitution. A professor of English and Film Studies at San Bernardino Valley College was punished for requiring his class to write essays defining pornography. And yes, that was defining it, not defending it.

This summer, Louisiana State University fired a tenured professor of early childhood education who has received multiple teaching awards because she occasionally used vulgar language and humor about sex when she was teaching about sexuality and also to capture her student's attention. And I could go on.

As you can see, this overzealous enforcement of anti-harassment policies comes with serious academic freedom concerns. "Teachers at Harvard, alarmed by the policy's expansive scope, are jettisoning teaching tools that make any reference to human sexuality," writes Harvard Law Professor Janet Halley.

Halley and Strossen also worry that these problems are a step in the wrong direction for feminism, with Halley warning that "women's quest for sexual autonomy is undercut by protectionist images of our sexuality, mandatory reporter requirements, and the newly robust obligation of schools to pursue sexual harassment claims even when the alleged victims don't want them to." 

Strossen said "OCR's flawed sexual harassment concept reflects sexist stereotypes that are equally insulting to women and men. For women, it embodies the archaic, infantilizing notion that we're inherently demeaned by any expression with sexual content." She thinks the goal should be "that classical liberal concept of gender justice," with a focus of "liberation" and "liberty"—not that battle cry of today's campus feminists: safety. 

Alas, freedom from government offiicals and censorious administrators used to be the goal of progressive students; now they clamor for the state and the staff to step in. Freddie de Boer lamented this turn in a recent New York Times magazine piece, though he, too, places more blame on bureaucratic culture than some sort of uniquely sensitive student populace: 

If students have adopted a litigious approach to regulating campus life, they are only working within the culture that colleges have built for them. When your environment so deeply resembles a Fortune 500 company, it makes sense to take every complaint straight to H.R. I don't excuse students who so zealously pursue their vision of campus life that they file Title IX complaints against people whose opinions they don't like. But I recognize their behavior as a rational response within a bureaucracy. It's hard to blame people within a system — particularly people so young — who take advantage of structures they've been told exist to help them. The problem is that these structures exist for the institutions themselves, and thus the erosion of political freedom is ultimately a consequence of the institutions. When we identify students as the real threat to intellectual freedom on campus, we're almost always looking in the wrong place.

De Boer said he wishes that today's committed campus activists would "remember that the best legacy of student activism lies in shaking up administrators, not in making appeals to them." 

But college students today have no experience with and seemingly no knowledge about pre-liberalized campuses, official school policies that limited women and minorities, campus administrators colluding with law enforcement to suppress student activism…. And unlike boomers and Gen X, millennials tend to get along well with their parents and have little generalized anti-authority feels. From a certain millennial viewpoint, appealing to campus administrators and federal agents to solve social problems is a no brainer.

The good news is that these officials are certain to start cracking down on things that students do support, too—that's the nature of giving bureaucrats broad authority.

As more campus SlutWalk organizers get cited for sexual harassment (certainly someone must be offended by a parade of half naked people, no?) and pro-gay t-shirt slogans are deemed too offensive and anti-police speakers are kept off campus… well, at least we can hope that students activists will start to reconsider their tacks. I have much more optimism that the kids will come around than I do for fixing this mess with the Office of Civil Rights, which has only been increasing its micromanagement of campus sexual-misconduct policies in recent years. But perhaps the push-back from elite professors like Strossen and Halley signals the beginning of the demise of this OCR overreach?