As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.
Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. In a 2013 resolution letter with the University of Montana – Missoula OCR stated: “Sexual harassment is unwelcome conduct of a sexual nature” and “[The Montana policy] improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.” The resolution letter says that the goal of Title IX policies is to have students report sexual harassment, and engage the school’s disciplinary system, as soon as unwelcome conduct of a sexual nature takes place, even if it is not creating a hostile environment. In its 2014 Questions and Answers on Title IX and Sexual Violence OCR stated: “Title IX requires a school to take prompt and effective steps reasonably calculated to end sexual harassment and sexual violence that creates a hostile environment (i.e., conduct that is sufficiently serious as to limit or deny a student’s ability to participate in or benefit from the school’s educational program and activity). But a school should not wait to take steps to protect its students until students have already been deprived of educational opportunities.”
As Gersen and Suk explain in their article, the suggestions made by OCR, even though not legally binding, come with the implied threat of revocation of federal funding for those schools that do not act as OCR directs. In short, OCR has conditioned the provision of federal funding on schools taking actions the law does not require of them. No college or university under investigation by OCR for alleged failure to comply with Title IX has challenged OCR’s authority or interpretation of Title IX for fear of losing its federal funding. OCR’s directive that schools investigate every allegation of “unwelcome conduct of a sexual nature” that is reported to them does not require schools to discipline every student found to have committed sexual harassment that falls below the “hostile environment” threshold. However, in today’s environment, it is easy to see how schools, needing to prove to OCR that they take sexual harassment complaints seriously, and armed with few tools other than discipline of offending students, might (incorrectly) take OCR’s recommendations as an invitation to punish every time a subjective complaint of unwelcome conduct is made.
One check on this possible overreach – at least in public universities – is the First Amendment. Public university students retain their First Amendment rights, and schools cannot limit their speech by prohibiting as sexual harassment any expression that another student takes as subjectively offensive to him/her. As the Supreme Court wrote in Healy v. James, that court’s precedents “leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”
In a 2003 Dear Colleague Letter OCR made clear that none of the laws under its purview were meant to infringe on First Amendment-protected speech. That letter explained, “[h]arassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person . . . .” In its 2014 Questions and Answers “OCR recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title IX.” However, under OCR’s recent guidelines, offensiveness of a particular expression as perceived by a single student is sufficient for colleges to put into motion the Title IX investigation and disciplinary apparatus to address, remedy, and prevent such “harassment.”
Few courts have addressed the precise issue of the First Amendment implications of university sexual harassment policies, but those that have distinguish between acceptable policies that limit the kinds of speech that can be determined to be sexual harassment, and those that define sexual harassment solely from the subjective perspective of the alleged victim. For example, in McCauley v. Univ. of the Virgin Islands, the Third Circuit court of appeals struck down as overbroad a university policy that prohibited students from engaging in “conduct which causes emotional distress,” noting the provision “is entirely subjective and provides no shelter for core protected speech. . . . ‘Emotional distress’ is a very loose concept.” Just last month, in Faulkner v. Univ. of Cincinnati, a federal district court in Ohio found the University of Cincinnati’s discriminatory harassment policy similarly overbroad because “[t]he application of the policy is thus premised on the listener’s reaction to speech, not upon any objective standards . . . While the policy’s introduction recognizes First Amendment protection for speech, that protection is apparently trumped when a listener feels uncomfortable.” Other cases have similarly held that the mere fact that someone may be offended by speech is not sufficient cause for a public school prohibiting it.
Public colleges and universities cannot continue to go down the path they are currently on, of ever-increasing their investigative and disciplinary bureaucracies in order to appease OCR and demonstrate strong responses to complaints of sexual harassment. If they do so, they will violate the First Amendment rights of their students, and courts will likely be called in to enforce those students’ rights. Instead, public colleges and universities may have to look to tools other than discipline to effectuate the goals of eliminating sexual harassment, preventing its recurrence, and addressing its effects. One would hope that the schools have enough courage to proactively take this step, rather than interpreting OCR’s directives to require them to discipline ever-increasing numbers of students accused of sexual harassment that falls short of the hostile environment standard set forth by Title IX.