DOJ and DOE(ducation) Ignore the Supreme Court

It’s no secret to followers of either constitutional law or bureaucratic politics that our executive branch agencies often try to effectively rewrite the law through their own administrative rule-making and definition of terms. It’s troublesome enough when they try to de facto revise congressionally approved statutes this way, but it’s especially troubling when they try to de facto revise constitutional rulings this way. The case in point is the Department of Justice’s Civil Rights Division’s and the Department of Education’s Office for Civil Rights’ joint “blueprint” for how schools should proceed with sexual harassment complaints under Title IX. (This isn’t new news, but I just became aware of it recently.)

The blueprint stems from a case at the University of Montana (the specifics are not particularly relevant), and the Findings and the Resolution Agreement (between the agencies and UM) jointly promulgated by those agencies last May. The Findings explicitly say that

The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.

There’s nothing inherently wrong with that, assuming the Agreement operates within the bounds of the law. And mostly it does.

For example, it says,

To resolve the concerns identified in the Letter of Findings, the University will take effective steps designed to: prevent sex-based harassment in its education programs and activities, including clarifying its policies and procedures applicable to various types of sex-based harassment; fully investigate conduct that may constitute sex-based harassment; appropriately respond to all conduct that may constitute sex-based harassment; and mitigate the effects of sex- based harassment, including by eliminating any hostile environment that may arise from or contribute to sex-based harassment.

These are all good things. Policies should be clear, and allegations should be fully investigated (so that they are neither ignored nor automatically presumed true), and actions or environments that are sexually hostile should be eliminated, or at a minimum mitigated.

But that all assumes we’re in agreement with what constitutes sexual harassment or a sexually hostile action or environment. And here DOJ and DOE part ways with no less an authority than the Supreme Court. The Agreement goes on to say,

As used in this Agreement…[t]he term “sexual harassment” means unwelcome conduct of a sexual nature.

And there’s the rub. That’s not how the Supreme Court has defined sexual harassment. The problem with this definition is that it makes “harassment” out of any conduct that anyone finds unwelcome. It is a purely subjective standard in which the bar for harassment is set at what the most sensitive person, even if they are irrationally sensitive, finds unwelcome.

By contrast the controlling definition as a matter of law is from the SCOTUS opinion in Davis v. Monroe County Board of Education, which defines sexual harassment as conduct

that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.

Note the “objective” terminology, and note that the conduct has to “effectively bar” a person’s ability to benefit from an educational opportunity, not just that the person is made uncomfortable, or even offended.

It’s obviously true that the expression of certain ideas can make people uncomfortable, and even offend them. So the expression of particular ideas that are in some way sexual (like a discussion of masturbation in a classroom), can, without doubt, be “unwelcome” to some people. But an unwelcome message does not necessarily bar a person’s ability to benefit from an educational opportunity, including the opportunity provided by the uncomfortable discussion. As the Third Circuit wrote in <em>in Saxe v. State College Area School District, speech or conduct

“may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct.”

I’m not shocked that our executive branch agencies find it convenient to enforce an uconstitutional rule. But I am, as always in such cases, disturbed.

(Thanks to the Foundation for Individual Rights in Education’s very thorough explanations, and public record-keeping on these issues. A good deal of the information in this post came from their website.)

About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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6 Responses to DOJ and DOE(ducation) Ignore the Supreme Court

  1. Murali says:

    I think that this is more over zealousness and carelessness than an actual intention to circumvent supreme court rulings. In our ordinary everyday discourse, when we ask what sexual harassment is, we think of certain central cases like the boss making unwanted advances against the secretary or of casting couch issues etc. And what makes them bad is that they were unwanted intrusions (because the cumulative and emergent effect of widespread harassment is to create a barrier to entry even if no individual action does so.) So while they should have known better, it does not seem like a thing that is deliberately aimed at circumventing supreme court standards

  2. J@m3z Aitch says:

    Maybe. But keep in mind that the both agencies, and particularly the DOJ, have internal lawyers; folks who actually know how to read law. It’s not possible that they’re ignorant of the Court’s definition. Or if in fact they are, being that ignorant requires a pretty purposeful effort at ignorance on their part.

    Keep in mind two incentives here. One is an incentive to try to change the Court’s definition. In the U.S. law journals form an on-going symposium on constitutional interpretation aimed at shaping how the Court defines these various legal elements, as do friend-of-the-court briefs, which can be filed by the executive branch…by the Solicitor General, who is house within the Department of Justice.That is, DOJ is an active participant in this on-going constitutional interpretation seminar.

    Second, if they can strongarm schools accused of allowing sexual harassment to accept remediation agreements that adopt this language–which may be cheaper, and better publicity, for the schools than fighting their way through the courts–then they can effectively enact their preferred definition as a sort of de facto law of the land, or at least as a shadow law.

    And while it’s true that a big part of what makes sexual harassment bad is that it’s unwanted attention, not everything unwanted necessarily constitutes harassment. We can’t allow the most sensitive to shut down all speech and action that might uncomfortably poke through their protective bubble, or we will not be able to have real education or have in-depth discussions of ideas.

    The line between “that makes me uncomfortable” and “this is not a legitimate action or focus of discussion” may not always be bright and clear, but I think there’s a pretty clear conceptual distinction that enables us to distinguish the overwhelming majority of cases.

  3. Matty says:

    I’m very uneasy about the whole question of the definition of harassment (sexual or otherwise). The legal language stated may be a good lower bar, if that happens we can be sure it is harassment and seems a proper standard for legal action but there may be behaviour that is not severe or persistent enough to block a students access to education but which we would still want to discourage such a one off pass made by a professor at a student.

    Also this only deals with universities, and I assume only those universities getting federal funds. Sexual harassment also occurs in situations clearly not covered and a working definition that could be used across different situations would be very useful for people formulating the internal rules for employers, social clubs etc. Attempts always seem to cluster at one of two extremes, either it isn’t harassment unless a crime was committed or it is if anyone (even a third party) claims it is. Neither of these seems a good way to deal with the issue.

  4. lancifer666 says:

    I had a student that I am sure was mentally ill. I won’t go into all of the detail that lead me to that conclusion for several reasons including privacy concerns.

    She began to act strangely in class, when she bothered to come at all, and finally her behavior became a distraction to me and my students. I asked her to stay after class.

    When I confronted her about her bizarre behavior she quickly turned the tables on me with claims of “inappropriate sexual remarks” on my part. I had made a mild “double entendre” about being sure to use parenthesis when substituting a term into an equation, “Wrap it up, it’s a dangerous world out there.”

    She had turned this into “Use condoms in your equations.” I pointed out that I had never said the word condom but she said that my remarks “…had created a sexually hostile environment that made it impossible for her to learn.” Of course missing every other class and not doing even one homework assignment was not effecting her grade in her mind.

    She also claimed that I had threatened her with bodily injury and other looney claims. I knew she was unbalanced so I asked another student to be present during our conversation. That person was rolling their eyes the whole time she was talking.

    She informed me that she had been a “women’s studies” major and knew that my behavior was “sexual harassment” among other things.

    Luckily she disappeared until the withdrawal deadline, which she of course missed by two days, and only came to class to get me to sign a withdrawal slip. Which I happily did.

    The disgusting truth is that had she brought these claims to the university I have no doubt that I would have been investigated and possibly disciplined. She was female and African American, that alone would have ensured that her claims were treated seriously even though anyone that spent ten minutes with her would quickly see that she needed psychological help and possibly heavy anti-psychotic medication.

  5. J@m3z Aitch says:

    You’re over-reacting, Lance. It’s not as though your employer has any kind of history of handling harassment claims badly.

  6. lancifer666 says:

    Yes, I remember that little dust up. IUPUI is home to a nasty little cadre of PC Nazis. It is probably not that different than most major universities in that respect.

    I had to fend them off once for calling a campus cop a “bitch”. She had left me stranded in the rain because my disabled car was literally 50 feet “off of campus”. My exact words, as she drove off in her nice warm squad car leaving me in the cold rain, were “Thanks for nothing bitch!”

    She filed a “sexual harassment” charge against me. Luckily the administration finally heard all of the evidence and no actions were taken against me, and the chief of the campus police department actually called to apologize for stranding me and to tell me that they were changing the “policy” so that it didn’t happen to some one else.

    I had called FIRE, on the advice of Ed Brayton, so perhaps that had something to do with the rational outcome.

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