How Sexual-Harassment Policies Are Diminishing Academic Freedom

A prominent, feminist professor of law argues that dubious federal rule-making is undermining free speech and reinforcing sexist stereotypes.

Earlier this month, Nadine Strossen, one of the most accomplished legal professionals of her generation, used a speaking engagement at Harvard University to decry pervasive speech restrictions on college campuses, arguing that intolerance for controversial views is greater now than at any time in memory.

Strossen has been a close observer of debates over speech on campus for decades. In graduate school she edited the Harvard Law Review. In 1991, she became the first woman to lead the American Civil Liberties Union, a position she held for 17 years. A staunch feminist, she found time in 2001 to perform as a guest star in a Broadway production of The Vagina Monologues. She is now a professor of law at New York Law School.

After declaring that there are many worrying abrogations of free speech on campus, she focused her remarks at the Shorenstein Center on Media, Politics and Public Policy on the way sexual-harassment law is being used to punish protected speech, including classroom instruction. “The most egregious recent example is the prolonged sexual harassment investigation that Northwestern University conducted against film professor Laura Kipnis earlier this year because of an article that she published in The Chronicle of Higher Education in which, ironically, she criticized the exaggerated, distorted concept of sexual harassment that is prevalent on campus,” she opined before giving other examples of excesses:

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.

In her judgment, this trend is a consequence of the notion that illegal sexual harassment extends to campus speech with any sexual content that anyone finds offensive.

That expansive notion has become entrenched “due to pressure from the Department of Education's Office of Civil Rights, the OCR,” she said. “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.”

She regards those standards as incompatible with free inquiry:

I'd like to underscore why we should not punish “any unwelcome sexual speech” as the OCR dictates. In our wonderfully diverse society we all have widely divergent views about what sexual expression we find positive or negative. I'd like to describe a cartoon on point. It shows three people in an art museum looking at a classic nude female torso, a fragment of an ancient sculpture minus the head and minus the limbs. And each viewer's reaction is shown in an air bubble. The first one thinks, “Art!” The second one thinks, “Smut!” And the third one thinks, “An insult to amputees!”

We individuals even have different perspectives about whether any given expression has any sexual content at all. That's captured by the old joke about the man who sees every inkblot his psychiatrist shows him as wildly erotic. When the psychiatrist says, "You're obsessed with sex!" the man says, "What do you mean I'm obsessed? You're the one who keeps showing me all these dirty pictures." We individuals cannot delegate these inherently subjective determinations to any officials. As with all discretionary decisions they will be arbitrary at best, discriminatory at worst.

She argues that the federal standards undermine “gender justice” as well:

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… I'd like to quote a brief that the ACLU's Women's Rights Project filed more than 30 years ago, which sadly is fully apt today. "A law that equates women with children and men with satyrs is hardly a step toward gender equality." Shortly before Ruth Bader Ginsburg became the founding director of the ACLU Women's Rights project in 1972, a reporter who was interviewing her used a somewhat belittling term from that era describing her work as "women's lib," to which Ginsburg sternly retorted, "No, we're working to liberate men and women."

Again invoking “that classic liberal concept of gender justice,” she noted that “the key goal was liberation. Liberty. In contrast, when I read what is self-proclaimed as feminism on campus today, too often the watchword has become something diametrically different, namely, safety.” And not a rigorously defined “safety” either:

The current clamor for campus "safety" seeks protection from exposure to ideas that make one uncomfortable… This focus on safety from disturbing ideas is especially misplaced given the ongoing, serious threats to students' physical safety on campus, including rape and sexual assault, which continue to be alarmingly prevalent… and also in the wake of the latest mass gun murders on a campus just last Thursday...

Our students are being doubly dis-served: too often denied safety from physical violence which is critical for their education, but too often granted safety from ideas, which is antithetical to their education. To say that we should be protected from any idea is the exact opposite of what the Supreme Court has held as the bedrock of our free speech system, namely that speech may never be suppressed because anyone has any negative reaction to its ideas, even the most vehemently negative reaction by even the vast majority of our fellow citizens. To be sure, speech may be suppressed if but only if it poses an imminent danger of concrete injury—for example, an intentional incitement of imminent violence. Short of such an extraordinary situation, Justice Brandeis eloquently explains why we must brave the discomforts and other potential downsides that are posed by speech whose ideals we consider evil and even incendiary. As he said, “fear of serious injury cannot alone justify suppression of free speech. Men feared witches and burned women.”

She endorsed the notion, attributed to onetime University of California administrator Clark Kerr, that “the university is not engaged in making ideas safe for students, it is engaged in making students safe for ideas,” and lamented that whereas students once fought for freedom as government officials sought to stifle it, today students are demanding that the university keep them "safe" from disturbing ideas.

Still, she laid most blame on the Office of Civil Rights. Due to its dubious legal interpretations and the coercive threat of colleges losing the federal funds that they’ve come to rely on, “campuses are pressured to punish as harassment any expression with any sexual content that anyone subjectively finds offensive no matter how unreasonably or irrationally. And the OCR explicitly rejected an objective ‘reasonable person’ standard, stating that expression will be harassing even if it is not offensive to an objectively reasonable person of the same gender in the same situation."

In place of the expansive sexual-harassment standard imposed by unelected Obama-administration bureaucrats, she suggested that campuses might turn to the Supreme Court’s caselaw on sexual harassment:

Here is how the Supreme Court defines it—not just anything that anyone considers unwelcome, subjectively, as the OCR would have it, but rather only unwelcome conduct that is targeted, discriminatory, and so severe, pervasive, and objectively offensive—and that so undermines and detracts from the victim's educational experience—that the victims are effectively denied equal access to an institution's resources and opportunities.

Now, that concept respects both free speech and gender equality. And therefore it's been endorsed by advocates of both, including the ACLU Women's Rights Project and the American Association of University Professors Committee on Women in the Academic Profession. Indeed, in the teaching context, the AAUP advocates an added prerequisite before any expression may be deemed to be sexual harassment: namely, that it is not germane to the subject matter. And here's the AAUP's explanation for that. It's specifically their committee on women in the academic profession: "The academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material."

The failure to apply those tighter standards in the academic context has resulted not only in the unfair punishment of professors at institutions around the country, she argued, but it has also had a chilling effect both at Harvard University and far beyond it.

She concluded by quoting Harvard Law professor Janet Halley. I’ll quote the same piece at greater length. “Teachers at Harvard, alarmed by the policy’s expansive scope, are jettisoning teaching tools that make any reference to human sexuality,” Halley wrote. “For teachers, students, scholars and participants in public debate whose topic is human sexuality, this is not an option. In these areas, much of what teachers have to teach and students have to learn and debate will be—must be—conveyed by words that are unwelcome, undesirable or offensive to some. The very topic of the policy is a dangerous place for teachers and students to be. Indeed, it is hard to imagine a more counterproductive thing for a sexual-harassment policy to do than to make it harder for us to discuss, teach, debate and improve sexual-harassment policy—but that is what the university policy threatens to do.”