Federal “harassment” agreement with University of Montana exposes journalists to risk of discipline for writing about sex

New federal guidance about what constitutes sexually harassing speech on college campuses appear to expand the definition of “harassment” to include harmless references to sexual topics, even those in student media.

Two federal agencies, the Department of Justice and the Department of Education, announced a settlement last week in their investigation of the University of Montana-Missoula, which was accused of responding lackadaisically to campus sexual assaults. The investigation expanded beyond sexual violence into a wider-ranging inquiry into UM’s policies on sexual harassment.

As part of resolving the Montana case, the agencies came out with an open letter to UM President Royce Engstrom that is intended to serve as guidance to other colleges as well. That letter presents a muddled view of what qualifies as sexually harassing speech, and it desperately needs clarifying to spare innocent speakers (including journalists) from overzealous campus discipline.

The federal government has authority over sexual harassment on college campuses under Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972. Essentially, if a campus exhibits indifference to complaints of gender-based harassment, and the Department of Education finds the harassment was so serious that it created a “hostile environment” interfering with the complainant’s ability to obtain an education, then the Department can impose fines. (And the target of the harassment can also take the college to court and seek money damages.)

The May 9 letter — signed by the heads of the Justice Department’s civil rights division and the Department of Education’s office of civil rights — takes issue with the way that UM’s sexual harassment policy defines “harassment.” Here is the part of the letter of utmost concern for journalists, artists and anyone else on a college campus whose work might deal with edgy sexual themes offensive to sensitive audience members:

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.’ … [T]he United States considers a variety of factors, both from a subjective and objective perspective, to determine if a hostile environment has been created.

The words “objective” and “subjective” are the key here. Conduct is “objectively” sexual harassment when a reasonable person would perceive it to be harassing. Conduct is “subjectively” sexual harassment if the complainant thinks it is, regardless of whether the complainant is being rational.

Federal courts have said repeatedly that both standards — the objective and the subjective — must be satisfied for a college to be held liable for maintaining a hostile environment: The complainant must actually feel harassed (subjective) and that feeling must be reasonable in light of the sensibilities of a normal person (objective). The Fourth Circuit U.S. Court of Appeals correctly explained this legal standard in the case of Jennings v. University of North Carolina, involving a former soccer player’s sexual harassment claims against members of the UNC coaching staff:

Harassment reaches the sufficiently severe or pervasive level, as required for liability under Title IX, when it creates an environment that a reasonable person would find hostile or abusive and that the victim herself subjectively perceives to be abusive.

By its May 9 pronouncement, however, the Department of Education seems to be saying something quite different: Speech can be sexually harassing even if a reasonable listener would not take it that way. Reasonableness, the letter indicates, is only one of “a variety of factors” and is not an essential prerequisite for speech to constitute harassment. And nothing in the DOE letter indicates that speech must be targeted toward a particular victim before it qualifies as harassment — it’s conceivable that just seeing an unwanted sexual message on a movie poster, a T-shirt, or the side of a bus could fit the Department’s elastic notion of “harassment.”

That leaves speakers, writers and performers in an unfairly tenuous position. It’s difficult enough to anticipate how reasonable listeners might react adversely to discussions or depictions of sex. It’s not realistic to anticipate how an unreasonable person will respond, and to be expected to tailor speech so that even an irrationally hyper-sensitive person would not take offense.

“The federal government has put colleges and universities in an impossible position with this mandate,” said First Amendment lawyer Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has denounced the Engstrom letter.

It is a bedrock principle of First Amendment law that government regulators cannot be given unfettered discretion to decide what speech is punishable. Even if those running college disciplinary systems act with optimal self-restraint – and experience strongly suggests they won’t – just the existence of an open-ended license to punish will worsen what is already on many campuses a highly intimidating environment for journalistic speech.

If just one audience member decides that a column or cartoon referring to sex is “unwelcome,” then its creator will be at risk of disciplinary action. That means the thinnest-skinned reader with the most overactive imagination gets to decide what is appropriate for the entire rest of the campus to read. Invariably, such a rule will be readily misused as a tool of retaliation by readers or administrators disgruntled with student media.

This is not a hypothetical fear. At the University of Montana itself, an irate law professor went on an (unsuccessful) crusade demanding that college administrators shut down a student’s sex column. More recently, student newspaper editors at the University of Missouri were threatened with disciplinary action over an April Fool’s parody edition containing a slur about lesbians that many readers found offensive.

Just this year, a college administrator in Utah used a foreboding bit of legal-ese — “hostile work environment” — when justifying his decision to remove a sex column from the student newspaper, and administrators at a college in New Mexico shut down the entire journalism program in response to a sex-themed edition of the newspaper. Although both colleges quickly backpedaled when their behavior provoked a public outcry, last week’s federal pronouncement is bound to give more such administrators ammunition to go after journalists.

Even those who are not motivated by ill intent toward the media may be frightened by the prospect of Title IX liability, and the accompanying adverse publicity of being a campus that tolerates sexual harassment, into making illogical censorship decisions.

Some of the worst managerial misjudgments at colleges and schools are justified by the avoidance of microscopically small risks of legal liability. Even though no school or college has ever been fined in the 39-year history of FERPA, the federal student privacy law, the risk of FERPA fines routinely is cited as a justification for absurdly over-classifying documents as “confidential education records” in defiance of state open-records laws — even when withholding the information jeopardizes public safety.

Given colleges’ well-documented history of overreacting to FERPA — a federal statute that has never been enforced — it takes little imagination to anticipate the excesses that will ensue in the name of avoiding sanctions under Title IX, which actually is enforced and actually does result in colleges (occasionally) being taken to court.

Student media on college campuses should uniquely be, and historically have been, laboratories for the testing of boundaries and taboos. Even 40 years ago, the Supreme Court told us that an “underground newspaper” circulated on a college campus that contained a political cartoon depicting the Statue of Liberty and Lady Justice being raped was constitutionally protected speech beyond the government’s authority to punish. In light of what colleges are now being told by the federal government, one reader’s complaint about that cartoon would be enough to provoke a harassment investigation.

Of course, a Department of Education penalty inconsistent with First Amendment standards would be thrown out of court on constitutional grounds, eventually. But that would be of little practical usefulness to a college student who is expelled as a harasser for circulating a sex-themed political cartoon.

It is laudable to want to make campuses safer and more welcoming places, but a campus where government officials have essentially limitless authority to punish speech is the opposite of “safe.” The Department of Education and Department of Justice are charged with enforcing civil rights, and the civil right to be free from government punishment for the content of speech should be paramount among them.