When the U.S. Department of Justice reached its settlement agreement with the University of Montana in early May, the agency lauded the plan as a blueprint for campuses across the nation.
Standing in a conference room at the U.S. Attorney's Office in Missoula, Deputy Assistant Attorney General Roy Austin Jr. praised the agreement as one that will help ensure that educational opportunities for women aren’t limited by sexual harassment or sexual assault.
Since then, the discussion of mandates in the agreement reached between UM and the DOJ have fueled a national debate surrounding sexual harassment policies on college campuses and how they may or may not hinder free speech.
Letters on the matter have run in the Wall Street Journal and Huffington Post, and last week, Sen. John McCain, R-Ariz., entered the fray, sending a letter to U.S. Attorney General Eric Holder, seeking information on the settlement reached between the DOJ and UM.
“It is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ — through a settlement — rather than through congressional regulatory action,” McCain wrote. “Assistant Attorney General (Thomas) Perez and the DOJ have used a settlement to effectively change the law, avoiding public accountability for their actions.”
McCain said Perez and the DOJ’s Civil Rights Division bypassed congressional authorization and agency rulemaking before redefining the meaning of sexual harassment at UM and other publicly funded universities and colleges.
Citing the DOJ’s letter of findings, which followed its investigation of UM, McCain said the agency changed the definition of sexual harassment to any “unwelcome conduct of a sexual nature.” That, he suggested, threatens academic freedom in the classroom.
“DOJ’s new interpretation of sexual harassment and its suggested disciplinary procedures are direct hindrances to students’ and teachers’ First Amendment rights, as well as their right to due process,” McCain wrote. “The new Title IX sexual harassment standards and suggested disciplinary procedures raise great concerns about the security of constitutional rights.”
While the debate heats up in Washington, university officials in Missoula said they will continue writing a working definition of sexual harassment in accordance with UM’s agreement with the DOJ.
Lucy France, UM legal counsel, said the agreement requires the university to draft new policies and procedures allowing for the “prompt and equitable resolution” of complaints alleging sexual discrimination.
“The agreement does not require that we write policies and procedures that are inconsistent with any constitutional rights,” France said. “We will not draft a policy that is vague or overly broad.”
France said the university’s new policy is currently in draft form. It defines sexual harassment as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.
According to the draft, such conduct crosses the line if it becomes a factor in one’s employment, education, living environment or participation in a school activity.
Conduct also meets the definition of sexual harassment if it interferes with one’s employment or education, or creates an “intimidating, hostile, offensive, or abusive” environment.
“We will not create a new category for sexual harassment,” France said. “I don’t believe we’ve been instructed to do that. We’re working on a draft policy that’s consistent with the law, and not inconsistent with First Amendment rights and academic freedom. That’s what we agreed to do with the DOJ.”
The Foundation for Individual Rights in Education also has weighed in on the issue since the May agreement. The Philadelphia-based group has emerged as one of the more vocal opponents of the DOJ’s settlement with UM.
Joe Cohn, the legislative and policy director for FIRE, believes aspects of the agreement threaten the civil liberties of students, faculty and staff at universities across the country.
He believes the UM agreement redefines sexual harassment by moving it away from conduct that a reasonable person would find offensive to the broader definition of “unwelcome conduct of a sexual nature.”
“The most sensitive person offended on any side of the political spectrum can claim sex harassment and it has to be treated as such,” Cohn said. “The DOJ went overboard by divorcing it from the reasonable person standard. They missed the mark, constitutionally speaking, and they missed it by a mile.”
Cohn said the facts described in the DOJ’s letter of finding were alarming. Investigators found that UM had not fully eliminated what the report described as a “hostile environment based on sex.”
Cohn believes the issues uncovered at UM didn’t arise from poor definition of sexual harassment and sexual assault policies. Rather, he said, problems stemmed from a lack of enforcement of existing policies.
“The solution was not to redefine things unconstitutionally and eliminate due process,” he said. “The solution would be to make sure the university lived up to its responsibility and treated all legitimate claims.”
Cohn said FIRE is watching and waiting to see how universities across the country respond to the DOJ’s settlement with UM. He believes the agreement has placed UM in a difficult position.
“It’s important that folks on the Hill recognize how crucial this issue is,” said Cohn. “McCain is asking questions that deserve serious answers from the DOJ. We hope they take this opportunity to reevaluate the directives that are found in the agreement with UM, and reevaluate their wisdom and their legality.”
In his letter to Holder, McCain listed five specific questions he wants answered. Among them, he asked how the DOJ’s new and “untested” standards of sexual harassment will increase the risk of being wrongfully convicted.
He also asked the DOJ to clarify how it will allow for the consistent application of the new standard “to avoid undesirable outcomes, including vexatious litigation.”
“From what source does DOJ claim its authority to revise court-approved Title IX jurisprudence through the settlement with the University of Montana rather than by judicial, regulatory, or legislative means?” McCain asked. “How do you specifically define unwelcome conduct of a sexual nature?”
McCain asked the DOJ to respond by July 17.
While Cohn believes the settlement will leave UM vulnerable to lawsuits for teaching such standard classics as “Lolita” and Shakespeare, France disagrees. She said academic freedoms will not be impacted by the school’s new mandated policies.
“Reading ‘Lolita’ might make someone feel uncomfortable, but we’re not going to sanction that,” France said. “Some of the speech we need to protect is very uncomfortable. But we will do that.”