The federal government is retreating from its definition of flirting as sexual harassment, according to an activist organization that has been exchanging letters with the Department of Education on a precedent set in a case involving the University of Montana.
As WND reported, the Department of Education intervened in the school’s policy for handling sexual assault cases, apparently eliminating the standard of whether a “reasonable person” would consider certain actions harassment.
That would mean that any comment, action, insinuation or implication would be harassment if it was unwanted.
The government’s advisory had warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”
The university policy had held 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.”
But that standard was not acceptable, according to the advisory, 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 advisory said.
The Foundation for Individual Rights in Education protested and has entered into the discussion with the federal agency since then over the issue.
Now the organization has confirmed the government is backing down.
The agency had been trying to impose “new, unconstitutional speech restrictions, due process abuses, and an overbroad definition of sexual harassment,” FIRE said.
FIRE said it got word of the change from Catherine Lhamon, the chief of the Department of Education’s Office for Civil Rights.
She said the “agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”
FIRE President Greg Lukianoff said Assistant Secretary Lhamon’s “clear statement that the Montana agreement does not represent OCR or DOJ policy – meaning it’s not much of a ‘blueprint’ – should come as a great relief to those who care about free speech and due process on our nation’s campuses.”
“Colleges have been bewildered trying to reconcile their obligations under the First Amendment with the requirements of the ‘blueprint’ – essentially an impossible task,” he said. “OCR and DOJ now need to directly inform our nation’s colleges and universities that they need no longer face that dilemma.”
The original Montana document had “included an overly broad definition of punishable sexual harassment: ‘any unwelcome conduct of a sexual nature,’ including ‘verbal conduct’ (i.e., speech),” FIRE reported.
“This definition could potentially cover risque movies, stand-up comedy routines, and even books like ‘Lolita.’ Yet a comparable agreement reached in late September between OCR and the State University of New York system lacked this provision, instead recognizing that Title IX only prohibits behavior that rises to the level of creating a ‘hostile environment’ – a far more specific, speech-protective threshold,” FIRE said.
Lahmon explained OCR’s understanding of hostile environment harassment is “consistent” with the definition of sexual harassment in the educational context provided by the U.S. Supreme Court in Davis v. Monroe County Board of Education (1999) – a definition FIRE and other civil liberties organizations have repeatedly urged OCR to recognize.
“After a national outcry from concerned citizens and civil liberties groups this summer, OCR appears to be rethinking its ill-conceived attempt to deem vast swaths of student and faculty speech ‘sexual harassment.’ This is a welcome development,” said FIRE Director of Legal and Public Advocacy Will Creeley. “A great deal of work remains to be done, but advocates of free speech and academic freedom on campus should be cheered by this progress.”
“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.
Bader had 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.”