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This is Part II of a series. Read Part I here.

Last week, I wrote about why the use of the U.S. Supreme Court’s definition of peer sexual harassment in the educational setting—set forth by the Court in Davis v. Monroe County Board of Education (1999)—is the most critical part of proposed regulations expected to be finalized this fall by the Department of Education.  

That blog entry addressed the fairly technical (and, FIREbelieves, false) legal argument that since the Davis case was about monetary liability for indifference to harassment on the part of a school district, the Davis standard is not appropriate for use in determining what distinguishes speech protected by the First Amendment from proscribable harassment. I explained why FIREbelieves it is false at some length last week.

Today, I want to address the reasons why the Davis standard for peer sexual harassment is the only one on offer that can sufficiently protect freedom of expression while also prohibiting real sexual harassment on college campuses. To do this, I’ll examine some of the alternatives that have been used or suggested, and explain why they fail under constitutional scrutiny. 

The “prongs” of the Davis standard

As stated by the Court, the standard covers behavior that is:

“so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” 

Davis, at 651. (Actually, the Court states this test three times, in slightly different variations.) In addition, the conduct must be discriminatory on the basis of sex, since the standard is derived from Title IX, which prohibits sex discrimination. Other laws govern discrimination based on other protected categories such as race and national origin.

Failing argument: There are more speech-restrictive standards than the Davis standard that would work fine and/or be constitutional. 

Now, let’s look at some alternative definitions that have been used over the years and compare.

“Any unwelcome conduct of a sexual nature”

First up is probably the simplest definition of sexual harassment, and perhaps the worst of them all: “Sexual harassment is any unwelcome conduct of a sexual nature.” This appears in a number of places with various levels of couching and qualification, including the Office for Civil Rights of the Department of Education’s (page 2). But it also appears simply in those stark terms, such as in OCR’s 2013 “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” which purported to set national policy through a findings letter and agreement with the University of Montana. The “blueprint” was so unpopular that OCR publicly backed away from it in a letter to ��֭����. But that didn’t stop the Department of Justice from turning to this definition again in a 2016 findings letter to the University of New Mexico.

In the 2013 Montana findings letter, OCR also paired this definition with an explicit reference to “verbal” conduct, making clear that it was intended to encompass purely expressive activity:  “Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.” 

The primary problem with this definition is that it is obviously wrong.

It’s clear to anyone, lawyers and nonlawyers alike, that not all “unwelcome conduct of a sexual nature,” including “verbal conduct” (i.e., speech), is sexual harassment.  Under this definition, a single unwanted request for a date, an unwanted sexual advance or joke (even to one’s own spouse or within the confines of a committed and continuing relationship), and even discussions of serious sexual topics in class that another student might find unpleasant or disagreeable is “sexual harassment.”  

This simplistic definition, which fulfills none of the prongs of the Davis standard, is too vague and overbroad to be constitutional, or even useful. It sweeps in a huge amount of protected speech, such as the classroom speech mentioned above. It also gives people no notice about when their behavior is sexually harassing, since it conditions the permissibility of speech entirely upon the subjective reaction of the listener. 

Universities in particular have come up with numerous examples of banned conduct and expression that might meet with this definition of sexual harassment, but no other. Historical examples — most of which are, thankfully, no longer in effect (in many cases due to ��֭����’s advocacy) — include “elevator eyes” (Murray State), “telling sexual jokes” (University of Iowa), “Ogling … a woman’s breast or a man’s derriere,” (University of Wisconsin-Oshkosh), “displaying sexually suggestive … statues” (Drexel University), and the classic “faxes sexual in nature” (Indiana University Southeast).

The only “advantage” of this definition (at least to those who see it as an advantage) is that it is so broad that it covers virtually anything that might make someone uncomfortable, and therefore is of great use to those who believe that punishing innocent people will discourage others and lead to a more comfortable and “safe” environment. (This is the classic “you have to break a few eggs to make an omelet” argument). That such an environment is unsafe for anyone who might express views that make someone else uncomfortable and therefore risk punishment — that is, everyone — does not seem to register.

A final attempt at making this overbroad definition work is the argument that all unwanted sexual conduct is harassment, but that only some sexual harassment is punishable sexual harassment. As FIRE wrote back in 2016,

To say that “any unwelcome conduct of a sexual nature” is the appropriate definition of “sexual harassment”—but not unlawful sexual harassment—is unhelpful, to say the least. OCR fails to appreciate the fact that if it labels something “sexual harassment,” reasonable members of the campus community will assume it’s prohibited. FIREwill self-censor, and administrators will punish such speech. They already have. Expecting students, faculty, and administrators to categorize protected expression as “harassment” but not take action against it is ridiculous—and contrary to OCR’s own advice. In its 2001 Revised Sexual Harassment Guidance, OCR wrote:

If harassment has occurred, doing nothing is always the wrong response. … The important thing is for school employees or officials to pay attention to the school environment and not to hesitate to respond to sexual harassment in the same reasonable, commonsense manner as they would to other types of serious misconduct.

Note that the passage never specifies unlawful harassment, as opposed to ordinary, might-be-constitutionally-protected “harassment.”

A definition capable of confusing both those who are subject to it and those in charge of administering it is unwise. 

“Conduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment”

Variations of this definition of sexual harassment, which comes from OCR’s pre-Davis , are common on college campuses: Harassment occurs when “conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” There are two likely reasons for the common appearance of policies based on this definition. First, the definition does not immediately fail the laugh test (unlike the previous definition) because it at least gives some clue as to what might be permitted and forbidden. Second, as discussed briefly in Part I of this blog series, this is the definition that, in the 2001 Guidance, OCR claimed was effectively the same as the Davis definition. It also uneasily coexists in that 2001 guidance with the “any unwelcome conduct of a sexual nature” definition, which is part of what makes that document such a muddle. 

But this definition, on its face, also fails to sufficiently protect speech among peers in the educational context, and therefore remains defective both constitutionally and practically. 

Let’s take the first three elements: “severe, persistent, or pervasive” versus Davis’ “severe, pervasive, and objectively offensive.” Most obviously, this test removes the “objectively offensive” requirement from Davis and replaces it with one of persistence. Removing this requirement for objective offensiveness turns the other elements of the standard into questions about the subjective feelings of the hearer, no matter how unreasonable or unusual those sensitivities might be. It also reduces the requirement that the expression be pervasive to one of mere persistence. It’s easy to think of a campus example where this change would cause a problem for free expression. Imagine, for example, a group of protesters advocating peacefully for several days in a row for transgender rights. Such a protest would certainly be persistent — it is happening for several days in a row — as well as offensive to a substantial number of people, especially within traditional Christian or Muslim religious communities.

Having satisfied the “severe, persistent, or pervasive” prongs of the definition in question, all that is left is to determine whether this protest “limit[s] a student’s ability to participate in or benefit from the education program, or [creates] a hostile or abusive educational environment.” But what might appear to be a substantial hurdle to deeming the protest harassment is actually fairly insubstantial. Unlike Davis’ requirement that the activity “so undermine[] and detract[] from the victims’ educational experience[] that the victim-students are effectively denied equal access to an institution’s resources and opportunities,” this definition merely requires that, at a minimum, it “limit a student’s ability to participate in or benefit from the education program.” Assuming the offended student in question here chooses to skip going to class or participating in campus activities because of their presumptively honest feelings of discomfort with the views being expressed by the transgender rights protesters they must pass along the way, their ability to participate has indeed been limited. This final prong of the definition is therefore satisfied, and the protest must therefore be labeled sexual harassment. 

Of course, such a protest is not actually sexual harassment, and is indeed clearly protected speech under the First Amendment on a public campus. That alone is enough to show the deficiency of this definition, but it’s hardly the only possible example. FIREknows from experience a school might decide, for example, that a classroom discussion about women in the military would qualify as well, assuming some of the viewpoints expressed made students feel offended and uncomfortable. If one wishes for a more current example, a discussion about the accusations against Jeffrey Epstein or Harvey Weinstein would also certainly qualify. And that’s assuming that the university is applying such a policy scrupulously and in good faith—an assumption that, in ��֭����’s 20 years of experience, hardly seems warranted.

“Unwelcome sexual conduct that is sufficiently severe or pervasive that it effectively denies a person equal access to the recipient’s education program or activity”

Another suggestion has been that colleges should just apply the standard for hostile environment sexual harassment in employment (which is covered under Title VII, not Title IX) to peer sexual harassment in the educational context. In (1986), the Supreme Court stated with regard to hostile environment sexual harassment among employees: “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” (Brackets in original.) For the purposes of the educational environment, however, the section about altering employment is usually changed to something like “denies a person equal access to an educational program or activity.” 

A more sophisticated version of this argument also includes the critical later addition to this standard from (1993), which stated: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.” This added an objective standard to the definition of workplace hostile environment harassment that was unaccountably missing from Meritor, and would likewise add such a requirement to the suggested definition in the educational context. 

This definition shares the problems of the previous definition that uses the “or” formulation, though its requirement that the elements be proven objectively and not just subjectively is an improvement. This definition relies on that objectivity requirement to do far too much work, though. The fact is that there are many instances in which a school could find that taking offense is “objectively reasonable,” and where an especially sensitive student might feel that speech interferes with his or her educational experience, but where the speech would nevertheless be constitutionally protected. Women who have had abortions, for example, are probably reasonable to be offended by speech calling abortion murder, as such speech implies (arguably, states) that they are murderers. The statement that “abortion is murder,” however, even if it rises to the level of a “pervasive” message, is nevertheless undoubtedly protected by the First Amendment. 

The fact is that a lot of protected speech, especially on sex-related topics such as gender transitioning, gay marriage, the availability of abortion, and even the details of sexual harassment or assault cases themselves could be considered objectively offensive. The Davis standard addresses this by requiring a showing of severity. This is critical, because while the reality of attending a university, with all of its accompanying diversity, is that students will frequently hear offensive messages that might be deemed pervasive (or persistent), it would be very unusual for such messages also to be reasonably called “severe.”

Allowing even objectively offensive speech that is either “severe” or “pervasive,” but not both, to be actionable would mean that mildly offensive speech that is repeated would become punishable if a student — no matter how unusually sensitive — feels that this speech effectively denies them access to their education.

So, too, would a particularly severe utterance that was never repeated. In the educational context, students are supposed to be given the opportunity to learn from their mistakes. Replacing Davis’ “and” with “or” could deprive them of that opportunity.

All that said, this standard is considered to be constitutionally permissible in the employment context. (This does not necessarily make it good policy, given the ongoing concern about sexual harassment policies in the workplace, but it is the law.) Why, then, one might ask, is it not also fine for peer harassment in the educational context?

The simple answer to this is that students are not employees and the college is not their employer. They just do not stand in the same relationship to the university that employees do with their employer. As the Court wrote in its landmark decision in Tinker v. Des Moines Independent Community School District (1969), “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” (It’s 2019 — make that 100 years!)

That’s because the educational environment is very different from that of the workplace environment, and the opinion in Davis continued to recognize this. First, the fact that the Court in Davis saw the need to set a different liability standard for peer harassment in the educational context than the liability standard it adopted for the workplace in the earlier Meritor and Harris cases is itself proof that the Court intended those different environments to be treated differently. If it had not, why bother with the Davis opinion at all? It could simply have ratified its Title VII employment case law for Title IX use and said no more. 

But one need not rely on that strong, though implicit, argument alone: The Court in Davis also explicitly says that the environments are simply different, writing,

Whether gender-oriented conduct rises to the level of actionable “harassment” thus “depends on a constellation of surrounding circumstances, expectations, and relationships,” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998), including, but not limited to, the ages of the harasser and the victim and the number of individuals involved, see OCR Title IX Guidelines 12041-12042. Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. See, e.g., Brief for National School Boards Association et al. as Amici Curiae 11 (describing “dizzying array of immature . . . behaviors by students”). Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it.”

While Davis was a case about elementary schoolers, and this verbiage is therefore targeted at younger students, the same is true in many ways of colleges. College students are often on their own for the first time, and many of them actually spend nearly every hour, waking and sleeping, under the rules of their university. That means college regulations must account for and allow space for students’ social and romantic interactions as well as their “work” in the classroom — a challenge that few workplaces (outside of the military) face. 

An even more important difference is that, as the Supreme Court explicitly recognized in Keyishian v. Board of Regents of Univ. of State of N.Y. (1967), college has a function that the workplace does not:

The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.” United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U. S. 234, 250, we said:

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

Restrictions on speech that are suitable for the environment of a business corporation like Procter & Gamble or Unilever simply are not suited to an environment where freedom of thought and expression, not to mention the gaining of new maturity and understanding, are paramount.

In the next and final installment of this blog series, I will cover a few remaining points about the definitions of sexual harassment, the Davis standard, and why sexual harassment and Title IX policy is of special concern not just to those concerned about due process, but about free speech as well.