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.)