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.

Thus, according to what is now conventional progressive wisdom, equality requires censorship. What is the provenance of this belief? It dates back some 30 years to the feminist anti-porn movement, which equated presumptively offensive sexual speech with sexual assaults and labeled pornography a civil rights violation (pursuant to a model statute conceived by Catherine MacKinnon and Andrea Dworkin). Critical race theorists advanced similar proposals barring racist speech aimed at historically disadvantaged minorities. In their view, "racist hate messages, threats, slurs, epithets, and disparagement," like allegedly hateful sexual speech, were actual, actionable bars to equality.

These theories did not fare well in court, but they have since flourished in the culture, especially on the left. Today, what was once an extreme, minority vision of equality that relies on censoring allegedly discriminatory speech has been embraced by college and university administrators and a critical mass of mainstream civil rights activists, including officials in the Obama administration.

Administration officials have also embraced popular feminist biases that require us to "believe the victims," reflexively.  DOJ/OCR rules require the University of Montana (and, in effect, all colleges and universities) to establish quasi-judicial procedures for hearing harassment complaints that favor complainants: Students accused of harassment are to be convicted in the absence of clear and convincing evidence of guilt, if guilt merely seems more likely than not, under a permissive "preponderance of evidence" standard. (This controversial, low standard of proof requirement was announced in 2011.)

Accused students may even be punished before any finding of guilt; as former OCR official Hans Bader observes, this is potentially an Alice in Wonderland "sentence first, verdict after" system: The DOJ/OCR letter states, "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."

Finally, in addition to punishing alleged harassers, colleges and universities are required to undertake extensive, putatively preventative measures against harassment, mainly extensive mandatory training (or re-education) programs for staff members and students. Read the dreary, detailed resolution agreement between the Obama administration and the University of Montana to appreciate the burdensome sexual harassment bureaucracies required by federal policy, especially when a school has been found derelict. Montana has agreed to hire an "equity consultant," and conduct student focus groups, annual "climate surveys" and monitoring programs; it will also subject itself to an annual federal assessment "of the effectiveness of its anti-discrimination efforts."

Who will benefit from this system? Not educators who hope to foster critical thinking, not students seeking intellectual instead of bureaucratic experiences, not parents whose tuition dollars support unwieldy student life bureaucracies, and not those administrators who value academic freedom and the university's traditional educational mission. The Obama administration's bureaucratic dream is an educational nightmare. Who will benefit from this system? Equity consultants, for sure.

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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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