Justice Department: Any ‘Verbal … Conduct of a Sexual Nature’ that Any Listener Finds ‘Unwelcome’ = ‘Sexual Harassment’ that Universities Must Prevent

Eugene Volokh
May 2, 2016

The Justice Department is telling universities that they have the obligation to investigate and prevent even individual instances of:

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures, or written materials”
making “unwelcome” sexual invitations, and likely
making sexist statements that some listeners or readers find “unwelcome.”
This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such speech of a “sexual nature,” under the government’s approach, would be “sexual harassment,” and would have to be investigated when a complaint is filed, and prevented for the future. And the same logic, if accepted, will likewise extend to racially themed speech that some people find offensive, plus probably also anti-gay speech and the like.

Why do I say this? The explanation has some few moving parts, because of how the government has articulated its theory. But here’s a brief summary.

1. The federal government has long taken the view that, just as Title VII’s ban on employment discrimination has been read as prohibiting speech or conduct that is “severe or pervasive” enough to create a “hostile, abusive, or offensive environment” based on sex for plaintiff and for a reasonable person, so Title IX (the educational analog) does the same for speech and conduct in educational institutions. Colleges and universities, according to the government, must therefore institute speech and conduct codes that ban such speech and conduct.

Those courts that have considered the issue have held that such speech codes in public universities violate the First Amendment on their face (to the extent they cover speech), because they are too vague or overbroad (i.e., apply beyond the few unprotected categories of speech, such as threats or “fighting words”). See, for instance, some of the cases cited in this guest post by FIRE’s Greg Lukianoff. The government’s pressuring the creation of such codes in either public institutions or private institutions would likewise violate the First Amendment. But the government takes a different view. Though it agrees that “harassment” codes shouldn’t be read in ways that violate the First Amendment (which is tautologically true), they apparently think that a great deal of speech “of a sexual nature” on campuses is unprotected by the First Amendment, as suggested by the materials discussed below.

2. Now, in an investigation involving the University of New Mexico, the government has gone further. It has expressly faulted UNM on the grounds that the University mistakenly indicates that unwelcome conduct of a sexual nature does not constitute sexual harassment until it causes a hostile environment or unless it is quid pro quo. Unwelcome conduct of a sexual nature, however, constitutes sexual harassment regardless of whether it causes a hostile environment or is quid pro quo.

Indeed, federal guidance defines sexual harassment as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.”

Hostile environment is not part of the definition of sexual harassment, nor is it required for “unwanted conduct of a sexual nature” to be deemed sexual harassment.

And we know that the government defines “unwelcome conduct of a sexual nature” very broadly; for instance, this Department of Education document, which defines conduct “sexual in nature” as “sexual conduct,” says that “Examples of sexual conduct include”:

making sexual propositions or pressuring students for sexual favors;
touching of a sexual nature;
writing graffiti of a sexual nature;
displaying or distributing sexually explicit drawings, pictures, or written materials;
performing sexual gestures or touching oneself sexually in front of others;
telling sexual or dirty jokes;
spreading sexual rumors or rating other students as to sexual activity or performance; or
circulating or showing e-mails or Web sites of a sexual nature.
The government does not limit such “sexual conduct” to conduct said directly to the offended person. Speech displayed or said to people generally may qualify if one of the viewers finds it offensive (as one can again tell by looking at hostile work environment cases, given that the government routinely analogizes to them).

And the “sexually explicit drawings, pictures, and materials” do not have to be punishable obscenity, or even displays of sex. Indeed, the definition isn’t even limited to nude pictures, but include suggestive pictures even if not nude, since the government routinely analogizes in such discussions to workplace harassment cases, in which nudity has not been required for material to be found to be unduly suggestive.

3. So “sexual harassment” is defined very broadly. And though the government concedes that such sexual harassment is legally actionable only if it is objectively offensive, and “severe or pervasive” (or perhaps both “severe and pervasive”) enough to create a hostile environment, the government also makes clear that the university’s job is to prevent harassment generally, not just hostile environments.

The letter to UNM calls for “sexual harassment prevention training,” not hostile environment harassment training. “In evaluating whether a university’s Title IX grievance procedures are prompt and equitable,” the letter says, “the United States considers” items including “evidence of prompt and effective steps taken to prevent recurrence of any harassment.” “We acknowledge and appreciate the commitment of the University to prevent and address sexual harassment ….”

And of course the government has long said that whatever is labeled “sexual harassment” must be prevented and punished. The Department of Education’s Know Your Rights page on Title IX is titled “Know Your Rights: Title IX Prohibits Sexual Harassment and Sexual Violence Where You Go to School.” Another Department of Education page says that “Sexual harassment of students is illegal” (including student-on-student harassment).

Indeed, given all that we’ve been hearing about sexual harassment, can you imagine a university actually telling students, “These things are sexual harassment, but we’re not punishing them”? Once something is labeled with the h-word, it is clearly marked as wrong and forbidden. For instance, the University of California policy says that “the University prohibits sexual violence and sexual harassment” and that the University has a responsibility “to ensure an equitable and inclusive education and employment environment free of sexual violence and sexual harassment.”

To its credit, UC does what the Department of Education faulted UNM for doing: It defines “sexual harassment” as limited to sexual extortion and to sexually themed speech and conduct that creates a hostile environment (again, still a flawed definition, in my view, but much better than what the Department of Education is requiring). But once “harassment” is redefined at the government’s insistence to cover any “unwelcome” “verbal … conduct of a sexual nature,” it’s clear that universities will feel the need to prevent and punish all such harassment.
4. So that’s what the Department of Education’s demand will practically involve: Universities will have to label as “sexual harassment” any saying “sexual or dirty jokes” that are overheard by someone who finds them “unwelcome” spreading “unwelcome” “sexual rumors,” even if they’re quite accurate (e.g., “have you heard that John cheated on Mary?”) “circulating or showing e-mails of Web sites of a sexual nature,” if someone who sees the e-mail finds it “unwelcome” “display[ing] or distributi[ing] sexually explicit drawings, pictures, or written materials,” if some viewer finds them “unwelcome,” making “unwelcome” sexual invitations.

“[S]exist statements and behavior that convey[s] … sexist attitudes” would likely have to be treated the same way. They will have to investigate complaints of any such speech. And they will, in practice, have to ban such speech, in order to demonstrate “evidence of prompt and effective steps taken to prevent recurrence of any harassment.”

And of course once sexual harassment is defined this broadly, racial harassment (which is seen as banned by Title VI the way that sexual harassment is banned by Title IX) would follow. (What university or government official would want to say that racially offensive speech is more protected than sexually offensive speech?) Thus, jokes, images and other statements that are seen as religiously offensive and “unwelcome” to some people who see or hear them would also have to be investigated, prevented and therefore punished. The federal government’s recent view that sexual orientation discrimination is a form of sex discrimination would mean the same as to statements that are seen as anti-gay. Still more federal government pressure, then, on universities to institute massive speech codes.

Source: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/02/justice-department-any-verbal-conduct-of-a-sexual-nature-that-any-listener-finds-unwelcome-sexual-harassment-that-universities-must-prevent/