No Sex Talk Allowed

What's wrong with the Obama administration's definition of sexual harassment
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University of Montana President Royce Engstrom discusses an agreement on the handling of campus sexual assault cases on last week. (AP / Matt Gouras)

What's the difference between an unwelcome request for a date and rape? Pursuant to the Obama administration's definition of sexual harassment, this is not an easy question to answer.

You have to read the administration's latest diktat to colleges and universities to believe it. In a joint letter to the University of Montana, (intended as "a blueprint" for campus administrators nationwide) the Justice Department (DOJ) and the Education's Department's Office of Civil Rights (OCR) define sexual harassment as "unwelcome conduct of a sexual nature," verbal or nonverbal, including "unwelcome sexual advances or acts of sexual assaults." Conduct (verbal or non-verbal) need not be "objectively offensive" to constitute harassment, the letter warns, ignoring federal court rulings on harassment, as well as common sense. If a student feels harassed, she may be harassed, regardless of the reasonableness of her feelings, and school administrators may be legally required to discipline her "harasser."

They are also required to promulgate detailed policies parroting the DOJ/OCR definition of harassment, as well as procedures for reporting and prosecuting alleged offenses: "Federal government mandates unconstitutional speech codes at college and universities nationwide," the Foundation for Individual Rights in Education (FIRE) accurately declares:

Among the forms of expression now punishable on America's campuses by order of the federal government are:

• Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of "The Vagina Monologues," a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov's Lolita—subject to discipline.
• Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
• Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.

There is likely no student on any campus anywhere who is not guilty of at least one of these "offenses." Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.

FIRE is right to note that fair, inclusive enforcement of this mindlessly broad policy is impossible. But I doubt it's intended to be fairly enforced. I doubt federal officials want or expect it to be used against sex educators, advocates of reproductive choice, anti-porn feminists, or gay rights advocates, if their speech of a sexual nature is "unwelcome" by religious conservatives.

The stated goal of this policy is stemming discrimination, but the inevitable result will be advancing it, in the form of content based prohibitions on speech. When people demand censorship of "unwelcome" speech, they're usually demanding censorship of the speech that they find unwelcome. They usually seek to silence their political or ideological opponents, not their friends—all in the name of some greater good.

It's easy to understand why federal officials might believe they're on the side of the angels. Their new "blueprint" on sexual harassment, detailed in the University of Montana letter, was occasioned by the University's reported failure to address alleged assaults, on and off campus. The trouble is, officials have focused on stemming insults as well as assaults. They've adopted the popular, "progressive" belief that arguably offensive, unwelcome sexual speech is the moral equivalent of unwelcome, abusive sexual acts and a virulent form of discrimination.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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