Past posts on this blog have noted that rules promulgated concerning speech-related sexual harassment have the potential a) to ensnare faculty in accusations of violating university rules and b) ensnare campuses – especially public universities – in adjudication systems that lack appropriate due process for the accused and thus collide with the external court system.
Nadine Strossen, former president of the American Civil Liberties Union, currently, the John Marshall Harlan II Professor at New York Law School, discussed such matters in a October 7th lecture entitled “Free Expression: An Endangered Species on Campus?” at the Shorenstein Center on Media, Politics and Public Policy, Harvard University, Kennedy School. Excerpt:
In short, campuses are pressured to punish as harassment any expression with any sexual content that anyone subjectively finds offensive, no matter how unreasonably or irrationally. And the OCR explicitly rejected an objective reasonable person standard, stating that “expression will be harassing, even if it is not offensive to an objectively reasonable person of the same gender in the same situation.” …
Universities have, in fact, been punishing students and faculty members for all manner of sexually themed expression, even when it has an important academic purpose. The most egregious, most recent example is the prolonged sexual harassment investigation that Northwestern University conducted against film professor Laura Kipnis earlier this year because of an article she published in the Chronicle of Higher Education, in which, ironically, she criticized the exaggerated, distorted concept of sexual harassment that is prevalent on campus. For months, the university subjected her to Star Chamber type interrogations pursuing the charge that her essay somehow constituted unlawful harassment.
I’d like to cite just a few other examples of campus censorship in the guise of punishing sexual harassment. The Naval War College placed a professor on administrative leave and demanded he apologize because, during a lecture that critically described Machiavelli’s views about leadership, he paraphrased Machiavelli’s comments about raping the goddess Fortuna.
Another example: The University of Denver suspended a tenured professor and found him guilty of sexual harassment for teaching about sexual topics in a graduate-level course in the course unit entitled “Drugs and Sin in American Life from Masturbation and Prostitution to Alcohol and Drugs.”
Next example: A sociology professor at Appalachian State University was suspended because she showed a documentary film that critically examined the adult film industry.
A sociology professor at the University of Colorado was forced to retire early because of a class in her course on deviance in which volunteer student assistants played roles in a scripted skit about prostitution.
A professor of English and film studies at San Bernardino Valley College was punished for requiring his class to write essays defining pornography. Yes, that was just defining it, not even defending it.
And just this summer, Louisiana State University fired a tenured professor of early childhood education who has received multiple teaching awards, because she occasionally used vulgar language and humor about sex when she was teaching about sexuality and also to capture her students’ attention. And I could go on. You get the idea…
An appropriately limited concept of illegal sexual harassment in the educational context was issued by the Supreme Court in 1999. And by the way, one of the points that was made in this remarkable open letter by the 28 Harvard Law School faculty members was that of the definition of sexual harassment that this school, among many others, has adopted under pressure of the OCR, departs from and is inconsistent with the Supreme Court’s definition.
And here is how the Supreme Court defines it: Not just anything that anyone considers unwelcome, subjectively as the OCR would have it, but rather, only unwelcomed conduct that is targeted, discriminatory and – I’m going to quote – “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim’s educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”
Now that concept respects both free speech and gender equality. And therefore, it’s been endorsed by advocates of both, including the ACLU Women’s Rights Project and the AAUP, the American Association of University Professors Committee on Women in the Academic Profession.
Indeed, in the teaching context, the AAUP advocates an added prerequisite before any expression may be deemed to be sexual harassment, namely that it is not germane to the subject matter, an additional requirement. And here’s AAUP’s explanation for that – and it’s specifically their Committee on Women in the Academic Profession: “The academic setting is distinct from the work place in that, wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material.” …
During the Q&A period:
Harvey Silverglate: Nadine, I’ve been an observer of the college and university scene for nearly half a century. And so have you, and you have a little advantage, you are a faculty member. My question is, I have sensed, especially since the mid 1980’s, a gradual decrease in the power and influence of faculties and a consequent increase in the power and numbers, I should add, of administrators. And in administrators, I include by the way, offices of general counsel who operate on the theory of no liability. That’s what they’re mainly interested in. Administrators don’t like bad publicity, lawyers don’t like liability. My question to you is whether you agree with this observation, and if you do, how can this trend by reversed? How can faculties recapture the moral and actual authority that they once had over the operation of institutions of higher education?
Ms. Strossen: Wow. That’s such a great observation. And I agree with it anecdotally. I’m sure others have studied it and documented it. But you’re reminding me that I saw a letter or an op-ed [in The Chronicle of Higher Education] that was co-authored by two Harvard Law School professors on this topic. One was Charles Fried and I’m blanking out on who the other one was [Robert Mnookin]. And forgive me if my numbers are not quite accurate, some people here may know. But, they gave this astonishing statistic that, not too long ago, there was one provost at Harvard and now, there are like dozens. It was just exponentially different. And I personally remember when both Harvard – you mentioned the general counsel office, when Harvard and Columbia and Cornell and other Ivy League colleges – I happened to be a lawyer in private practice, so it was the early ’80s, and I was representing, my law firm was representing Cornell, my good friend, Floyd Abrams, another First Amendment advocate was representing Columbia, and somebody else was representing Harvard. But I think each of those campuses had one in-house lawyer, at most. And it was somebody fairly junior who was just kind of like the guardian or the watchdog, the people that we, the outside lawyers reported to. And now, I see Columbia has dozens of lawyers and I’m sure Harvard is the same. Good job opportunities…
Full transcript at http://shorensteincenter.org/nadine-strossen-free-expression-an-endangered-species-on-campus-transcript/
Video of full lecture:
Yours truly was made aware of the Strossen lecture in the blog by UCLA professor Eugene Volokh: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/09/prof-nadine-strossen-former-president-of-the-aclu-on-campus-free-speech/?postshare=4631447114516320