For just about two decades, NAS has been following the implementation and evolution of sexual harassment codes on American college and university campuses. Needless to say, we’ve never had the slightest problem with throwing the book at anyone proven guilty of real harassment, such as the predatory, lecherous professor who extorts sexual favors from students in exchange for higher grades or good recommendations. Nor is genuine harassment limited to quid pro quo sexual transactions. It also includes faculty members or senior administrators who can’t keep their hands to themselves. Sexual harassment so understood is straightforward and incontestable, and that’s how we continue to see it. Such behavior has no place anywhere in the academic enterprise—period—and should be addressed promptly and firmly. If justice should require the dismissal of a tenured professor, so be it.
Alas, it’s never been quite that simple. Many campus codes and policies, as we learned, were deeply problematical and troubling. In January 1993, we set out our concerns in a formal statement, Sexual Harassment and Academic Freedom. We noted there that “sexual harassment” was often defined in a mischievously vague, open-ended manner that extended far beyond conduct, and aggressively intruded into the realm of ideas and classroom discourse. A new and impossibly subjective standard—the “hostile environment”—became the driving force behind an avalanche of complaints, usually having no obvious connection to sexual impropriety. Thus—believe it or not—“callous insensitivity to the experience of women” or arguing that distinct social roles between men and women resulted more from nature than nurture were standard issue in the ever-expanding lexicon of apparent thought offenses that now constituted “harassment.” A local cadre of enforcers in the faculty and administration were commonly the most aggressive movers and shakers: drafting their school’s code, monitoring faculty members and students, “planting” student observers in ideologically suspect courses, encouraging complaints, and staffing the administrative bodies charged with adjudicating them.
It didn’t take much to rev this bureaucratic juggernaut into high gear, either. Inspector Clouseau-style “investigations,” however farcical they might appear to non-academic observers, were often commenced on the basis of ludicrously flimsy pretexts, such as a complainant’s feeling “uncomfortable” during classroom discussions of controversial issues. You might object that charges were frequently subjective and difficult, if not impossible to disprove, but they posed no problem for those eager to organize a posse.
Academic due process, needless to say, often took a big hit. In one particularly egregious case, a senior history professor was handed his pink termination slip, unaware to that point that his academic dean had secretly initiated an “investigation” against him. The dean, who disliked him because of his frequent public dissents from feminist orthodoxy, calculated, with reason, that sexual harassment was the one rap against which there was little defense or recourse. In many cases, all but minimal information was withheld from the accused, lest he “retaliate” against the accuser. Even faculty who were eventually exonerated often found themselves on permanent probation and subject to continued surveillance by campus activists, in whose eyes the failure to prove guilt did not establish innocence.
All of this characterized the wave of hysterical and ideologically driven charges of sexual harassment which sprang up across the United States during the first half of the 1990s. It was primarily the work of what Daphne Patai usefully dubbed the Sexual Harassment Industry (SHI) in a 1998 book, Heterophobia: Sexual Harassment and the Future of Feminism. And while the hysteria eventually abated, the damage had been done. Things quieted on campus, but not because ringing defenses of academic freedom and due process had been thundered from the mountaintop. The largely home-grown coercive machinery of the SHI remained in place, its power to intimidate resoundingly established. Cowed faculty, especially those without tenure, had learned their place and stayed there.
Administrators, when they were not actually the SHI’s eager accomplices, were wont to declare their ceaseless vigilance and resolve to provide harassment-free campuses with “safe” learning environments. On the risk-control advice of legal counsel, many institutions seeking to forestall litigation stampeded to impose still more stringent codes, along with mandatory sexual harassment training sessions for all faculty, staff, and student residence halls. And as occasional new cases would demonstrate, SHI’s daunting power could be revived just about any time, lest anyone forget.
Now fast forward to 4 April 2011 when, without prior notice or external input, the US Education Department’s Office for Civil Rights (OCR) published mandatory new “guidelines” for the adjudication of sexual harassment complaints at all colleges and universities receiving federal funding (which is to say, just about every college and university in the country). OCR has virtually no public visibility, but it wields enormous clout as the agency charged with enforcing federal civil rights statutes applicable to educational institutions or programs receiving federal funds from the DOE, including the Pell grants which figure hugely in the budgets of many schools. Under Title IX of the Education Amendments of 1972, OCR is charged with ensuring that recipient institutions do not discriminate on the basis of sex, and the agency’s considerable power derives from its authority to withhold federal funding from any institution determined to be out of compliance with federal requirements. It also exercises considerable latitude in interpreting federal statutes when determining what constitutes “discrimination” in specific cases.
Obviously, whoever can withhold large sums of money exercises enormous powers of persuasion over those hoping to get them. So when OCR announces just about anything—such as its new guidelines for adjudicating sexual harassment complaints—you’d better believe that recipient institutions will take notice and fall in line. As of this writing, a number of schools, including Yale and Notre Dame, have already hastened to jump through the hoop and have revised their harassment complaint procedures accordingly.
The new regulations, incidentally, came as a bolt from the blue, in striking contrast to past practice. Previously, OCR provided advance notification of proposed new policies and requested commentary from interested parties. Readers may recall a previous go-around with the agency in 1995 when, at our urging, a number of NAS members wrote to take issue with its proposed adoption of the “hostile environment” standard as sufficient grounds for bringing a complaint of sexual harassment. But here at least OCR had requested comments and actually replied in detail to our objections. No such thing this time, just a fait accompli announcing that recipient institutions had their marching orders and were expected to get with the program. And what an astonishing program it is. If you’ve been concerned about the troubled relationships between sexual harassment codes and academic freedom or First Amendment rights and academic due process, you’re not going to feel good about what’s coming to your campus in the near future.
First off, OCR’s 4 April letter makes no mention whatsoever of legitimate and longstanding concerns about academic freedom or of the need to protect First Amendment rights at public institutions, no acknowledgement of the many past difficulties generated by vague and elastic definitions of sexual harassment. In other words, if you think it’s quite a stretch to construe “callous insensitivity to the experience of women” as sexual harassment, you’d better continue to watch what you say and where you say it. Especially ominous is the letter’s failure to reaffirm OCR’s own previous guidance statements stressing the need to apply sexual harassment regulations that also respect the First Amendment rights of students and faculty members. There is no reference, for example, to the July 2003 “Dear Colleague” letter from then-assistant-secretary Gerald A. Reynolds, who addressed free speech issues clearly and directly: