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Free Speech Advocates Alarmed by New Federal Sexual Harassment Rules

New guidelines from the Department of Education lower the standards of what constitutes sexual harassment to any “unwelcome conduct of a sexual nature.” Free speech activists say this definition is too broad and could endanger First Amendment rights.

An agreement between the U.S. Department of Education and the University of Montana is purported to be the blueprint for sweeping changes to sexual harassment protocol for colleges and universities nationwide. However, it has drawn the ire of some free speech advocates who fear that certain parts of “the Agreement” are in violation of their First Amendment rights.

The new rules are intended to help eliminate the sexually hostile environment that has plagued the Montana campus and to protect students from sexual harassment and assault. This expansive reform comes in the wake of a string of sexual assault and harassment allegations that have been made at the university over a three-year period.

The first incident of the series of events that led to “the Agreement” occurred in the fall of 2011 when the University of Montana received reports that two female students had been raped by male students, two of which were alleged to be football players. The university responded by hiring former Montana Supreme Court Justice Diane Barz to conduct an independent investigation of the claims in order to stay in compliance with their Title IX obligations. In the investigation, Justice Barz uncovered seven more reports of sexual assault that occurred on the campus between September 2010 and December 2011.

On January 31, 2012, Justice Barz submitted her final report to the university. The report asserted that the university “has a problem with sexual assault on and off campus and needs to take steps to address it to insure the safety of all students as well as faculty, staff and guests.” It also included a long list of recommendations to the university – many of which the Department of Justice and the Department of Education eventually incorporated into “the Agreement”.

While Justice Barz was conducting her independent investigation, the Department of Justice was conducting a preliminary investigation into the university’s, as well as local law enforcement’s response to sexual assault. In May 2013, both the Department of Justice and the Department of Education launched formal investigations in relation to compliance with Title IV and Title IX. The end result was a 30-page letter to the University of Montana detailing the background, processes, findings and ultimately, the resolution of the United States’ investigation.

According to the United States’ analysis, there were twenty-three sexual assault complaints and ten sexual harassment complaints in the past three years, alone. The university, to their credit, did make an effort to raise sexual harassment awareness in a number of different ways, but essentially failed to eliminate the hostile environment. Moreover, the federal government deemed the university’s sexual assault and harassment policies and grievance procedures to be insufficient and inadequate.

“The Agreement” was officially executed on May 9. In its resolution, it states the measures required by the government to remedy the university’s Title IV and Title IX compliance issues and to effectively eliminate the sexually hostile campus climate. The requirements contained, but were not limited to:  the revision and implementation of the university’s policies and procedures; the creation of a resource guide to clarify to students what constitutes sexual harassment and sexual assault; the distribution of campus climate assessment surveys; the promotion of additional resource; and the provision of mandatory training on sex discrimination, incident grievance procedures, the rights entitled by Title IV and Title IX.

The federal government is celebrating “the Agreement” as a landmark reform that has potential to prevent sexual harassment and assault at colleges and universities across the country. However, the implication that all colleges and universities will be using it as a blueprint to deal with sexual harassment issues, in and of itself, has outraged some who believe the government painted with too broad of strokes in addressing the situation.

The specific passages that are under scrutiny by free speech advocates are in the sections highlighting the University of Montana’s sexual harassment and assault prohibition policies and the legal standards. The university’s policies define sexual harassment as conduct that “is sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive benefits, services or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.” However, in the letter, the federal government asserts that this definition describes a hostile environment but does not, in fact, correctly define sexual harassment.

According to the new guidelines from the Department of Education: “Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.”

The university’s policies state: “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”. The letter, however, deems this insufficient: “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.” It goes on to state: “the United States considers a variety of factors, from both a subjective and objective perspective to determine if a hostile environment has been created.”

Therein lies the central issue a faction of free speech advocates have had with the rhetoric of the reform. They believe that these definitions infringe upon the free speech of virtually anyone on a college campus.

Preventing sexual assault and sexual harassment and eliminating the sexually hostile environments is a worthy goal. Whether or not the government’s new blueprint for sexual harassment reform will truly put free speech in jeopardy remains to be seen.

Fix contributor Blake Baxter is a student at Eureka College.

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