By Peter Wood
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."
That's a breathtakingly broad definition, and it didn't take long for observers to draw out some of the implications. Greg Lukianoff, president of the Foundation for Individual Rights in Education [FIRE], wrote in The Wall Street Journal that "an unsuccessful request for a date, or even assigning a potentially offensive book like Lolita would now be construed as harassment." Cathy Young, writing for Newsday, observed that the "federal civil rights officials seem concerned exclusively with the accuser's rights." Hans Bader, a lawyer for the Competitive Enterprise Institute, writing in The Chronicle of Higher Education, says the Department of Education's "radical new position" could "redefine every flirtation and request to go out on a date as potential sexual harassment." Harvey Silverglate and Juliana DeVries writing on Minding the Campus say the definition and accompanying rules amount to "the effective abolition of free speech on college campuses, as well as the almost certain conviction of large numbers of students, many of whom will be innocent, of 'harassment.'" Wendy Kaminer writing in The Atlantic calls the new rules a "mindlessly broad policy," and she doubts that it is even "intended to be fairly enforced," in that it seems unlikely that campus authorities will worry much about the sensitivities of "religious conservatives" to what they take as "unwelcome conduct of a sexual nature." Kaminer also notes that "The trouble is [federal] officials have focused on stemming insults as well as assaults." Bill Jacobson in Legal Insurrection wrote, "now everything is a speech crime on campus and the administrators get to pick and choose who is guilty." The new stricture applies to faculty, administrators and other campus employees, as well as students.
The storm of protest against the DOJ and OCR letter covers a wide range of political perspectives. Huffington Post's Huffpost Live posted 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?"
David Moshman, a professor of educational psychology writing on the Huffington Post's College section, summed up matters by calling the new policy "an extraordinary threat to academic freedom."
The new definition will apply far beyond the high-range hills of Missoula. The first paragraph of the letter makes that clear: "The Agreement will serve as a blueprint for college and universities throughout the country to protect students from sexual harassment and assault." This isn't a "blueprint" in the sense that colleges and universities are free to say, "No, I don't like the layout of this floor. Can we put the hallway on this side and the sink over there?" It is, rather, a declaration that under Titles IV and IX of the Higher Education Act, the DOJ and the OCR will henceforth require colleges and universities to conform to the new plan, like it or not. The language of the letter is one of "obligations" and "must comply" and "remedies required."
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.
FIRE makes quick work of OCR wobbling defense. Lukianoff speaks of OCR's "belated lip service to freedom of expression," after issuing a "blueprint that doesn't once mention the First Amendment or freedom of speech." In any case, OCR's implied-but-denied standard of "reasonability" is small comfort. As Bill Jacobson and Wendy Kaminer among others have pointed out, the impossibly broad rule that OCR has conjured, a rule that potentially turns every word and every gesture into grist for a sexual harassment complaint, is really a writ of arbitrary power for campus administrators who will get to select which cases deserve institutional attention. Does anyone seriously think the choices they will make in this zone of discretion will be fair-minded? Rather, the prospect is that members of favored groups will not be prosecuted for activities that violate the policy and members of disfavored groups will be.
OCR presented its "blueprint" as an authoritative pronouncement. It has no credibility now to say it didn't aim at re-architecting the whole house.
DOJ and OCR present the policy as a remedy. A remedy for what? The short answer: the usual stuff. A state university used to coddling its varsity athletes was less than assiduous in investigating several reported instances of sexual assault and alleged rape in 2011 and 2012. By the time the university got serious it compounded its errors by appointing an overly eager harassment expert to head up its response. There were ugly allegations to address, including an alleged gang rape of an intoxicated student by four football players. But, as always, there were other claims of a more shadowy character. All told, by summer 2012, there were reports of eleven sexual assaults involving students over 18 months, including three separate cases in which football players were accused.
The University, then under the gaze of OCR, began a frantic and at some points almost comical effort to get right with the anti-harassment establishment. Its effort to change the campus climate from "hostile environment" to something better included requiring students to go through a series of video tutorials called "Personal Empowerment Through Self Awareness." The videos imposed on students some sketchy statistics, such as the claim that only two percent of people lie about being assaulted. They seem to have done little, however, to fend off the coming assault from DOJ and OCR.
We don't know what the staff of OCR was thinking but it is hard to avoid the impression that they regarded the University of Montana as a gift: a university with a sufficiently poor record of handling sexual assaults and sexual harassment that OCR would have a good reason to intervene. But the purpose of the intervention was not just to set things right in Missoula. It was OCR's opportunity to expand still further on its April 4, 2011 "Dear Colleague Letter" which lowered the standard of proof for finding someone guilty of sexual misconduct to "preponderance of the evidence."
The lack of alacrity of the University of Montana when it came to investigating allegations of sexual assault by football players among others was one thing OCR sought to remedy. But OCR was also seeking to remedy something larger and much harder to name. But let's try.
The DOJ/OCR Montana letter is a grab for power. To that extent, it is self-explaining. Opposing sexual harassment is a profession and, to some extent, an industry. The self-interest of the people who make their living opposing sexual harassment lies on the side of lower standards of evidence, broader definitions, and minimization of obstacles to new regulations. Regulatory self-aggrandizement is not a mystery, though it is usually mysterious to the regulators themselves who have a level of difficulty in apprehending their own motives akin to that of anorexics attempting to form an accurate picture of their bodies.
But empire building is only part of the story. The Montana letter is a step in the long progression of feminism towards a surveillance society. Fifteen years ago Daphne Patai in her book Heterophobia: Sexual Harassment and the Future of Feminism diagnosed feminism's effort to write "a new chapter in the dystopian tradition of surveillance and unfreedom." Patai saw the coming emphasis on "transparency, whereby one's every gesture, every thought, is exposed to the judgment of one's fellow citizens." OCR is of course far from this level of intrusiveness, but not in spirit.
A third ingredient in the mysterious mind of OCR is the "victim rights" ideology. We have benefited from Bruce Bawer's recent expert dissection of this movement in The Victim's Revolution: The Rise of Identity Studies and The Closing of the Liberal Mind, which focuses on the presiding sense of grievance that seeks constant revalidation by discovering new sources of oppression. Diversity ideology, as I've often pointed out in my own work on the topic, is one of the deep fonts of this self-reproducing grievance. The twin models for all other grievances are the legacy of racial oppression and the virtually ineradicable presence of patriarchy. The less apparent either of these existential evils become in our actual social life, the more insistent the diversiphiles become that it is a powerful presence beneath the surface that needs to be exposed in order to be addressed.
In writing our study of Bowdoin College, What Does Bowdoin Teach?, Michael Toscano and I bumped into a version of this phenomenon. In 2007, a Bowdoin associate dean of student affairs expressed her worry that:
The dean's office does not get near the amount of reports that would be expected considering the statistics regarding sexual assault on campuses and within the age bracket. The fact that the process is not used much is an indicator that it is broken.
A few months later another dean similarly worried that the college seemed to lack any significant level of sexual assaults. "In my 10.5 years at Bowdoin, the sexual Misconduct Board has handled only two cases." The old policy had offered students two routes to filing complaints, but these were judged (without any evidence) to inhibit some students who had good reason to complain, so the procedural paths were expanded and a campaign launched to gather more complaints, the handful of actual cases being judged "the tip of the iceberg."
The iceberg, if there was one, however, remained stubbornly submerged. Despite a barrage of phony statistics ("About 3% of coeds are raped each academic year") and efforts to raise "awareness," the epidemic of reported cases failed to materialize. The numbers went up but nowhere near to the level that had been imagined. An October 2011 Bowdoin Orient article reported that there was one offense in 2008. In 2009, Bowdoin reported a total of five "forcible sex offenses" on campus. In 2010, it reported seven offenses--four of them committed by campus residents.
It is hard to avoid the impression that the campus was in the grips of an imaginary crisis for which it desperately wanted supporting evidence. Perhaps OCR can supply it. Broaden the definition of "sexual harassment" to the point where almost anything can be construed as conducing to a "hostile environment," and you might finally find the iceberg.
None of this is to say that real sexual assaults should be treated lightly or that they may go under-reported. But OCR's expansion of the definition and lowering of the evidentiary standards have a lot less to do with solving an underlying problem than they do with creating a new one that fulfills an ideological need.
A fourth and last ingredient in OCR's eagerness for these new regulations would seem to be distaste for masculinity. Helen Smith's new book, Men on Strike: Why Men Are Boycotting Marriage captures the sense in which college campuses have become places that cater to women's supposed needs while treating "conventional maleness" as a defect to be rectified. Male sexual initiative is especially problematic and the new OCR rules appear to be a fairly major step towards imposing a code that, if respected, would tame boys even further, and if disrespected would conduce to their prompt removal from campus.
I don't expect that OCR will voluntarily relinquish its new rules, nor will colleges and universities generally resist their implementation. The rules, however, will be challenged in court, and it seems a pretty safe bet that, in light of their flagrant transgression against rights of free speech and due process, they will be overturned.
To anticipate that defeat is, however, not much comfort for the hundreds and perhaps thousands of students and faculty members who will incur substantial expense, humiliation, and disruption to their academic careers as they face accusations under this new policy. Most of the accused will cave in and settle their cases by abasing themselves to avoid the maximum penalties to which they might be subjected. An era of plea bargaining for reduced sentences lies ahead, with the usual prosecutorial goal of racking up victories without the trouble of proving guilt.
And when the new policy is eventually struck down by a court, those who promulgated, supported, and enforced it will not be personally sanctioned. Rather, they can present themselves as heroes struggling to prevent despicable behavior but stymied by right-wing judges.
I expect that even the DOJ and OCR folks realize that judicial reversal is inevitable, as will many of the campus authorities who go about implementing the new policy. Their willingness to impose this sort of regime in the face of almost certain judicial defeat down the road is yet further evidence of the deeply irrational motives that drive this movement. The Montana letter is the grievance bureaucracy dreaming of its perfect world. For the rest of us who care about academic freedom, the presumption of innocence, objective standards, and the need to accommodate our colleges to the education of men as well as women, the task is to bring that awakening as soon as possible.
Peter Wood is president of the National Association of Scholars.
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