by Fran Faircloth
Fellow at the National Women’s Law Center

Sexual harassment and violence are persistent problems at universities, high schools, and even middle schools across the country. In a national survey of nearly 2,000 seventh through twelfth-graders conducted in 2011, nearly half of all students surveyed reported experiencing some form of sexual harassment in the 2010-11 school year. In a 2009 study, nearly 20% of undergraduate women surveyed reported that they experienced sexual assault or attempted sexual assault while enrolled in college. And a study published by the National Institute of Justice estimated that colleges experience more than 35 incidents of sexual violence per 1,000 female students.

In 2012, following more than 20 reports of sexual assault in a 3-year period at the University of Montana-Missoula, the Department of Justice’s Civil Rights Division (DOJ) and the Department of Education’s Office for Civil Rights (OCR) investigated the University.  This year they released a Letter of Findings and a Resolution Agreement requiring the University to:

“take effective steps 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.”

Makes sense, right?  As part of its efforts to remedy the sexual assault problems on its campus, the University released a new sexual harassment policy just last month.

Unfortunately, groups like the Foundation for Individual Rights in Education (FIRE) have been critical of OCR’s work to combat sexual assault on campus, arguing that its approach threatens students’ free speech and is inconsistent with the law. In actuality, the DOJ & OCR have taken steps that will ensure that all students have a safe educational environment where they can participate in their schools’ academic and extracurricular programs without fear of sexual harassment or assault. Nothing about that threatens free speech.

To help sort through the debate, below are 4 myths and truths about what DOJ and OCR have done.

Myth #1: Groups have objected that DOJ and OCR expanded the definition of sexual harassment to include things that are not really harassment, like asking someone on a date or giving someone a valentine.

TRUTH: DOJ and OCR’s definition of sexual harassment is consistent with longstanding, well established law. The definition of harassment as “unwelcome conduct of a sexual nature” was outlined by the Supreme Court back in 1986 in an employment case called Meritor Savings Bank v. Vinson. It has been applied in the Title IX context by OCR at least since its 2001 Revised Sexual Harassment Guidance and has consistently been used by federal courts.

OCR’s clarification of the definition of sexual harassment was necessary because the University’s policies were confusing.  Montana had eight different policies, leaving students confused about when to report harassment, how to report it, and what appropriate steps the university had to take. The Resolution makes sure that Montana and other universities will create clear sexual harassment policies that comply with Title IX.

Myth #2: DOJ and OCR will prompt students to over-report harassment, because the definition of harassment is overly broad.

TRUTH: Student-to-student assault on campuses across the nation is vastly under-reported, and false reports of rape are rare. A 2011 report by the DOJ Office of Community Oriented Policing Services found that rape is the most common violent crime on American college campuses, and that fewer than 5% of college women who were victims of rape or attempted rape report it to the police.

Myth #3: DOJ and OCR’s definition of sexual harassment infringes on students’ First Amendment rights to free speech. Groups worry that something, like a student newspaper editorial,  that a school thinks is in poor taste could be censored.

TRUTH: While students maintain their First Amendment rights on campus, those rights are not unlimited. In 1969, in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), the Supreme Court explained that schools could restrict students’ speech if it “would substantially interfere with the work of the school or impinge upon the rights of other students.” And DOJ and OCR have been clear that conduct, verbal or otherwise, does not constitute actionable sexual harassment unless it rises to a level that interferes with a student’s ability to benefit from his or her education. Any conduct rising to that level would “substantially interfere with the work of the school or impinge upon the rights of other students” and prohibitions of it are consistent with existing First Amendment law. FIRE’s claims that students would be punished for actions like giving someone a valentine card or asking someone out on a date are baseless  and insulting, given that we are talking about sexual harassment and assault.

Myth #4: These policies will deprive accused students of their rights without a fair hearing because they encourage schools to take disciplinary action against students as soon as they are accused.

TRUTH: Unfortunately, most sexual assault survivors encounter complaint processes that are neither prompt nor fair, and there was evidence that the University of Montana was no different. A report revealed that reporting sexual harassment was burdensome, students had fewer rights, and there was general confusion about how investigations should work. The policy changes required by DOJ and OCR would help resolve these issues by making both the reporting and investigation processes clearer for students and administrators.

The policies require the University to “take immediate steps to protect the complainant.” But that does not mean that the University has to take disciplinary action against an accused student without a proper investigation. It simply requires that the school do what it can to protect the accuser from further harassment or retaliation, so that they may continue to benefit from the educational environment. This could mean providing counseling, moving a student to a different dormitory, changing a student’s course enrollment, or other non-disciplinary actions.

None of these actions would be unfair to students. Universities must balance the competing interests of both parties to a claim of sexual harassment. Under the OCR’s required policies, students would receive a fair investigation and hearing where accusers must prove they were harassed by a preponderance of the evidence.  This has been the standard for sexual harassment claims for decades, and it is the same standard used in civil proceedings (even in cases where there could be criminal sanctions for the defendant’s actions, such as a civil tort action for battery, robbery, or murder).

Fran Faircloth graduated from Yale Law School in 2012 and clerked for U.S. Federal Court of Appeals for the Tenth Circuit. She is currently a fellow with the National Women’s Law Center, focusing on education and employment issues. 

This post is part of the YWCA Week Without Violence™ 2013 Blog Carnival. We invite you to join the dialogue! Post your comment below, share your story and follow the conversation on Twitter with the hashtag #ywcaWWV.