Every flirtation on a college campus in America and every request to go out on a date soon could be considered as potential sexual harassment, after the federal government overturned decades of precedent with an advisory letter to the University of Montana regarding sexual harassment cases.
The letter from the Department of Education trashed the standard of whether a “reasonable person” would consider actions harassing, and explained that any comment, action, insinuation or implication would be harassment if it was unwanted.
The letter warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”
For example, the university explains – incorrectly according to Washington – that “whether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.”
Not good, said the letter signed by Anurima Bhargava, chief of the U.S. Department of Justice Civil Rights Division Educational Opportunities Section, and Gary Jackson, a region chief for the U.S. Department of Education.
“Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment,’” the letter said.
It was addressed to University of Montana President Royce Engstrom and its lawyer, Lucy France. The startling new standard came in the 31-page document that was a “resolution” of an investigation into the sexual harassment climate at the school and its “compliance review” of officials’ actions.
“Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment,” the federal officials warned the state.
Hans Bader at the Chronicle of Higher Education noted the position adopted by the Education Department is “radical.”
“The department criticized the university for defining sexual harassment based on previous Supreme Court rulings, including a 1993 decision that said conduct is not harassment if it does not offend a ‘reasonable person,’ and a 1999 ruling in Davis v. Monroe County Board of Education that emphasized that conduct must be ‘severe, pervasive, and objectively offensive’ to constitute illegal sexual harassment under Title IX,” he wrote.
Nonsense, suggested the federal letter. What must be enforced is a standard that classifies as sexual harassment “any unwelcome conduct of a sexual nature.” And that includes “verbal” conduct.
The report noted that under those conditions, a professor who references issues such as HIV transmission would be guilty of sexual harassment if any one of his students was uncomfortable.
The letter explains that while the narrower definition might be usable if there is a lawsuit, for the enforcement the schools must use, the broader and much more vague definitions are required.
Bader, a lawyer for the Competitive Enterprise Institute, previously worked in the Office for Civil Rights in the Education Department, and he said the department in 2003 reached the opposite conclusion. He reported that the standard then was that harassment must be “something beyond the mere expression of views … that some person finds offensive.”
It then referenced the perspective of that “reasonable person.”
Bader warned of the complications of the new Obama administration ban on all unwelcome speech. Every sex-education class would fall under that ban if even one squeamish student objects, he noted.
“Defining any romantic overture as harassment merely because it turns out to be unwelcome – even if it only occurred once, and was not repeated after its unwelcomeness became known – has dire implications for dating,” he wrote. “Since no one is a mind reader, the only way to avoid ever making an ‘unwelcome advance’ is to never ask anyone out on a date.”
Further, the instruction letter violates the due process requirements of the Constitution by insisting that punishment may be required before the hearing process regarding allegations of sexual harassment may be completed.
The impact of a letter is to “cast a dark could over academic freedom and the ability to debate important issues about sexual morality, norms, and roles that may offend some listeners,” he concluded.
The report was generated because the school was concerned after two sex assaults were reported and officials had asked a retired judge to make recommendations. Washington stepped in immediately to do a concurrent evaluation.
It concluded that the university wasn’t adequately addressing “sexual harassment” that was “verbal” or “nonverbal” or “unwelcome” sexual advances.
Washington also recently came under fire for determining that on-campus sex assault cases would not be decided, as in courts, by evidence beyond a reasonable doubt.
In fact, Washington requires colleges to use a preponderance of evidence standard, which simply means someone would think there is more evidence something did happen than not.
On April 4, 2011, the Education Department issued a directive on campus sexual assault that states, “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”
And by “sex discrimination,” they also mean rape. The direction on grievance procedures is listed under a heading titled: “What are a school’s obligations under Title IX regarding sexual violence?”
College campus courts using the preponderance of evidence standard of evidence to weigh sexual assault cases have many onlookers outraged.
The group Stop Abusive and Violent Environments, or SAVE, believes the department policy is unconstitutional. SAVE issued a statement declaring the preponderance of evidence standard is “stripping the accused of the presumption of innocence and allowing students to be expelled without the benefit of legal counsel.”
SAVE has published a list of 13 organizations that have issued letters calling on the department to rescind its sexual assault directive, including the American Association of University Professors, the American Council for Trustees and Alumni, the National Association for Scholars, Tully Center for Free Speech at Syracuse University, eight civil rights scholars, Accuracy in Media, the Heartland Institute, the Alliance Defending Freedom and Feminists for Free Expression.
A year ago, WND reported a case of severe injustice caused by the department’s preponderance of evidence policy.
Student Caleb Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police.
Officers not only refused to charge him, but also alleged his accuser made a false report. Police issued a warrant for her arrest.
It took 18 months – during which Warner not only was banned from the UND campus, but also from all college campuses in the state – for the university to agree to reconsider the conviction and clear his record.
The Foundation For Individual Rights in Education, or FIRE, said, “Nobody should be surprised that [Warner] does not want to return to UND.”
“The university showed less than zero concern for disrupting his life and career and branding him a criminal based on an extremely low standard of evidence, and has shown zero inclination to be remorseful about what it has done,” the group said.