3. Harassment Codes and Free Speech
Of all the threats to academic freedom, perhaps none is so burdened with dilemmas as sexual harassment codes. For far too long, higher education in America was complicit in policies of discrimination against women, and until recently sexual harassment was not a problem colleges and universities considered to be of any importance. Even today, far too many women faculty and student are subjected to sexual harassment.
However, it is also becoming clear that many harassment codes has been misused to punish faculty and students for speech that, although often distasteful and offensive, nevertheless must be protected for the sake of free speech and academic freedom. Several professors have been punished for relatively innocuous classroom statements that, although not directed at any particular students, were deemed offensive. All too often, harassment codes are being used to silence students and professors rather than prevent harassment. Although in many cases courts have overturned punishments that restrict free speech, the chilling effect of misused harassment codes cannot be ignored.
Currently, the law on harassment is based on prohibition of discrimination, which the Equal Employment Opportunity Commission has interpreted to include forms of harassments which alter the conditions of employment. EEOC guidelines define two forms of harassment: 1) quid pro quo harassment, which is the use of rewards or threat of punishments in exchange for sexual favors; 2) hostile environment harassment, which covers forms of harassment that discriminate without fitting the quid pro quo category.
A Model Harassment Code
[Note on definitions: the word "harassment" is used throughout this policy to mean any conduct regulated by the university's disciplinary code (except for academic dishonesty and similar cases), so that a uniform conduct code can be created. This code supersedes all other university disciplinary codes that may have a broader standard for punishment.]
Harassment is a serious violation of university standards of conduct, and all students, faculty, and staff are subject to discipline for violating university rules. Any kind of harassment may be regulated, but harassment based on race, sex, religion, national origin, sexual orientation, and disability is regarded by this university as particularly serious and destructive to the free exchange of ideas in our community, and may result in enhanced penalties. But assaults, threats, intimidation, and other forms of harassment for any reason are considered completely unacceptable.
Harassment consists of speech or behavior that creates an intimidating, hostile, or offensive learning environment. In order to constitute harassment, courts have found that actions must be sufficient serious as to constitute discrimination. It must result in an alteration of the conditions of employment or education. In general, harassment must also be directed at a specific individual or group. Harassment is usually repeated and unwanted behavior, although sufficiently serious isolated incidents may alone constitute harassment.
In a university, the free expression of ideas is one of the highest priorities; this is precisely why harassment is regulated, since it tends to silence open discussion by those who are harassed. But protected speech should not be regulated by charges of harassment, and disciplinary boards should be careful not to punish protected speech. Merely offensive ideas, by themselves, are not harassment. Material relevant to a classroom discussion that is presented by a professor should not be the basis for an accusation of harassment.
In order to protect free speech, a high-level administrator such as the president, chancellor, or provost should review charges of harassment immediately after they filed. This initial review, in consultation with the official in charge of disciplinary hearings, should not attempt to verify the accuracy of claims, but merely determine whether the charge of harassment -- if everything alleged is true -- is a charge solely based on the accused's protected free speech or an obvious attempt to silence protected speech by frivolous accusations. If the accusations have possible merit, university officials still have the discretion about whether or not to convene a hearing based on their analysis of the evidence.
Disciplinary hearings:
Anonymous accusations should not be permitted in disciplinary hearings. However, accusers may remain anonymous in informal attempts to deal with disputes, and officials should encourage and facilitate dispute resolution unless the accused is involved in a pattern of harassment or presents a danger to others. Intimidation or further harassment of witnesses or accusers is prohibited.
In general, the rules of evidence and due process used in U.S. civil suits should be followed. However, disciplinary boards are not composed of lawyers, and evidence codes need not be followed in every detail. But the accused should be informed of the evidence and witnesses against them in advance of the hearing, and should be able to question these witnesses and call their own witnesses. Lawyers or advisers for the accused or accuser should be permitted, but no lawyer may speak as an advocate on their behalf. A university official who investigates the case and presents it to the disciplinary board should not serve as a member of the disciplinary board or the appeals board.
Disciplinary boards for faculty should be primarily or entirely composed of faculty, and some students should be involved in disciplinary boards for students, but all disciplinary boards should follow the same standards for what constitutes harassment: a student should not be punished for behavior if university officials are unwilling to punish a faculty member for the same actions, and vice versa.
Disciplinary panels, whether at public or private universities, should conduct disciplinary hearings in secret and maintain the privacy of accusers, accused, and witnesses. However, the results of disciplinary hearings should be made public and not concealed. In the case where a student, staff, or faculty member is found guilty, the offender should be named and the punishment (and reasons for it) should be described in detail to the university community. Other schools and potential employers should be informed of the punishment in detail.
Disciplinary cases should be held as quickly as reasonably possible. Officials may instruct an accused not to have any contact with an accuser, or temporarily move an accused in the university housing system.
Appeals: A special university-wide appeals board, headed by a top university official, should exist to consider appeals from either the accused or accusers who feel that procedures have been violated or a gross injustice has been done. The appeals board may decide not revisit the case if it is satisfied with what happened after a cursory review. In general, the appeals board should defer to the judgment of the disciplinary board, but it may increase or reduce the penalties, or change the verdict, in cases where it is necessary. Further appeal to the president may also be possible.
Special Note on Sexual Harassment: Quid pro quo harassment of any kind is considered particularly unacceptable. Threats or rewards in exchange for sexual favors are a serious violation of academic standards, particularly when made by an individual in a position of authority.
Statement on Consensual Relationships: Consensual sexual relationships are not prohibited by the University. However, no individual should hold a position of authority over a person they have a sexual relationship with, and they should excuse themselves from any decisions involving a past or present partner. No individual should make sexual overtures to someone they hold authority over (such as a professor to his or her student), since such actions contain an implicit threat of punishment or reward. Also, the fact that a consensual relationship has existed in the past does not insulate an individual from a charge of sexual harassment or sexual assault.
The Poster Police
In 1993, Chris Robison, a graduate student in clinical psychology at the University of Nebraska, was ordered by administrators to remove a 5x7 inch photo of his wife in a chainmail bikini. Two female graduate students who shared the office with him objected to the photo and asked to have it remove, saying that it created a hostile work environment. Robison claims that it limits his free speech rights to express the message "that my wife is a sexy person." Normally, an administrative decision to resolve a dispute between officemates in the workplace would not attract much attention, but the bikini incident soon became infamous throughout the entire country. In fact, there was no formal charge or finding of sexual harassment, only an administrative decision about the appropriateness of displaying the photograph.
But this is hardly the first case where administrators have censored controversial photographs. In 1992, a department chair asked assistant instructor Pedro Bustos-Aguilar to move a sexually explicit AIDS-awareness poster after receiving complaints from students and parents. (Chronicle of Higher Education, 4/8/92)
Brigham Young University not only bans alcohol, tobacco, caffeine, beards, shorts, and braless women, but sexually-oriented posters as well. It requires all students to live in approved housing, where one non-student tenant was threatened with eviction for having a sexually provocative poster in his own room. In September 1994, Brigham Young ordered the staff of the campus newspaper, the Daily Universe, to remove the "beyond the wall" advertising insert from 4,000 papers because it included posters showing a condom and scantily clad women, which administrators considered offensive. (Chronicle of Higher Education, 9/21/94)
But the most absurd case of poster censorship came during the Persian Gulf War, when Ohio State English professor and Vietnam veteran Phoebe Spinrad complained to the U.S. Department of Labor that she was being harassed by "anti-military" material on some faculty members' office doors. The Department of Labor ordered Ohio State to create affirmative-action programs for Vietnam vets and keep the working environment free of harassment against veterans. No one spoke up to criticize this clear-cut violation of academic freedom; instead, Spinrad was cheered in conservative journals like Heterodoxy.
Don't Talk About Sex
Jane Gallop (Academe, 9/94) warns that sexual harassment policies may interfere with close relationships between teachers and students, and affect classroom discussions of sexuality. Gallop also makes an important point about the tendency to ignore "common nonsexual forms of sexual harassment -- like the engineering professor who regularly tells his class that women can't be engineers, working toward that self-fulfilling prophecy by encouraging his male students while making sure that his female students feel stupid whenever they ask a question or don't understand." It is essential to understand that sexual harassment is all about gender discrimination, not sex.
In some cases, sexual harassment charges have been used to silence classroom discussions of sexuality. In 1995, Craig Rogers filed a $2.5 million lawsuit against California State University at Sacramento because he was offended by professor Joanne Marrow's guest presentation for a class on "Contemporary Issues in Psychology" in December 1994.
Marrow joked about women's masturbation, held up a catalog of sex toys, and showed slides of female genitalia. Rogers says he felt "completely trapped, held captive, this crap forced on me." Rogers says he "felt" raped because the pictures involuntarily aroused him. Rogers also accused her of having a "political agenda" because she made it clear that she was a lesbian and intimidated men in the classroom by talking about how women could be freed from men through self-stimulation. (Chronicle of Higher Education, 3/17/95)
Racial Harassment and the OCR
In a 1991 presentation to the Fairbanks Chamber of Commerce, University of Alaska professor Judith Kleinfeld declared that professors in the teacher education program were pressured to pass Native American students who deserved to fail. After the statement was made public, a complaint was filed with the Department of Education's Office of Civil Rights. An OCR investigation determined that Kleinfeld's remarks were not prohibited under Title VI of the Civil Rights Act.
Steven Wulf (Academic Questions, Spring 1995) uses the Kleinfeld example to attack the OCR's revised guidelines for investigating incidents and harassment, which can make an institution liable if there are any forms of "harassing conduct" which "subject and individual to different treatment on the basis of race if [an institution] has effectively caused, encouraged, accepted, tolerated, or failed to correct a racially hostile environment." According to Wulf, this provision is "alarmingly insensitive to academic freedom." But quite to the contrary, the provision follows the standard EEOC "hostile environment" definition of harassment, and includes a footnote protecting free speech: "investigatory guidance is directed at conduct that constitutes race discrimination and not the content of speech. In cases in which verbal statements or other forms of expression are involved, consideration will be given to any implications of the First Amendment."
It's impossible to see the kind of danger in these guidelines that Wulf imagines: "Could the assignment of 'offensive' literary texts (say, Huck Finn) trigger an OCR investigation for a possible violation of Title VI?" The answer is an easy and obvious no. Teaching Huck Finn has never been and never will be harassment.