The College Fix

Peter Wood of the National Association of Scholars argues the broad new definition of sexual harassment adopted by the Department of Education poses a threat to free speech at campuses across the country.

In a letter dated May 9, the federal government dramatically expanded the definition of sexual harassment on campus. In the 31-page letter, the Civil Rights Division of the U.S. Department of Justice (DOJ) and the Office of Civil Rights (OCR) in the U.S. Department of Education, informed the president of the University of Montana, Royce Engstrom, that they were “pleased to confirm the resolution” of an investigation into how the University had handled allegations of sexual misconduct. The stately bureaucratic prose did not distract much from the main point: via this letter, the Executive Branch of the Federal Government was imposing a startling change.  Essentially it said that from now on the Feds would treat as “sexual harassment” any “unwelcome conduct of a sexual nature.” And it eliminated the requirement that actions or speech had to be “offensive” according to reasonable standards and objective evidence to be deemed actual “harassment.”

…The storm of protest against the DOJ and OCR letter covers a wide range of political perspectives. Huffington Post’s Huffpost Liveposted a 23-minute conversation hosted by Alyona Minkovski, featuring libertarian Lukianoff, feminist Elizabeth Nolan Brown, and conservative Nathan Harden (from The College Fix), who seemed in ardent agreement over the awfulness of the new regulations. Elizabeth Nolan Brown thinks the OCR’s overreach trivializes the real problems of sexual misbehavior on campus. She said, “It makes the very real concepts of consent and sexual harassment prevention just seem that much more ridiculous.” Lukianoff said the OCR has gone “wildly overboard sending into havoc frankly the state of harassment law on campus.” Harden asks, “Where is the presumption of innocence?”

…OCR was apparently taken by surprise at the ferocity of the reaction and the dearth of supportive declarations. On May 29, it issued an email answer to those who had written complaints about the new rules. FIRE quickly posted the OCR email (with the name of the particular recipient redacted) and posted as well an analysis (“Facing National Criticism, Feds Attempt to Defend Controversial Campus ‘Blueprint’“). OCR did not retract or amend its new definitions and rules but instead offered assurance that they did not mean what so many fear. The regulations “do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights under the First Amendment.” The escape hatch that the OCR email conjures–but which is nowhere to be found in the original 31-page letter–is that the sexually offensive speech that OCR is targeting comes under the new rules if and only if it creates a “hostile environment.”

Indeed, the doctrine of “hostile environments” is the ledge on which the whole speech-code enterprise of the anti-sexual harassment industry has built its edifice. In that sense, OCR’s declaration is simply a restatement of its basic principle. The mischief lies in the definition of “hostile environment.” In the letter to the University of Montana, for example, OCR explains, “Indeed, a single instance of rape is sufficiently severe to create a hostile environment.” Few would doubt that a rape creates a “hostile environment” for the victim and other potential victims in the immediate circumstances, but note the lack of guardrails around this declaration. How geographically large and how long-lasting is the “hostile environment” created by a “single instance of rape?” Does a rape at an off-campus fraternity party turn an entire campus of 60,000 students into a “hostile environment?” Does that “hostile environment” endure until the OCR signals years later that it is safe to step outside again?

I presume the answer to these questions, in the minds of OCR regulators, is “no.” They have in mind some kind of unexpressed standard of “reasonability.” The mystery is why they erased the language of reasonability that already existed and replaced it with the vague and open-ended declarations put forth in the Montana letter. Indeed, that letter explicitly rejected Montana’s “reasonable person” standard. OCR now puts itself in the tenuous position of wanting it both ways: to champion its Montana declaration which rejects the reasonability standard, while asking the public to give OCR the benefit of the doubt that the office really does adhere to some kind of reasonability standard of its own.