Boulder, CO- After much controversy and accusations that they are limiting free speech, the Department of Education and Department of Justice has backed off of a sexual harassment policy which was intended to serve as a blue print for all colleges.
The policy was introduced to the University of Montana in September and was to serve as a blue print for all colleges, including the University of Colorado- Boulder. The new policy re-defined sexual harassment as “any unwelcome conduct of a sexual nature [including] verbal conduct,” which many took as an infringement on a student’s right to free speech. Critics said the policy turned flirting into a punishable sexual harassment offense.
Now the Department of Justice’s Office for Civil Rights (OCR) has released a statement distancing themselves from the policy. In statement sent to the FIRE, the Foundation for Individual Rights in Education, ORC secretary, Catherine Lhamon, said that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”
The OCR also stated their definition of sexual harassment more closely follows the definition established in U.S. Supreme Court in Davis vs. Monroe County Board of Education (1999), the definition that FIRE has insisted should be used by the Department of Education. In Davis vs. Monroe County Board of Education, the high court determined that a grade school was liif able in cases of sexual harassment and assault when they failed to address or displayed “indifference” to pervasive sexual misconduct.
The U.S. Supreme Court said that a school must respond to conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
FIRE believes this is the best definition of student-on-student sexual harassment and has urged the Department of Education to change the definition dictated to UM. While the OCR has distanced themselves from the definition, the DOE stands by it, stating that it was a policy appropriate for the particulars of the UM case.
“Assistant Secretary Lhamon’s clear statement that the Montana agreement does not represent OCR or DOJ policy – meaning it’s not much of a ‘blueprint’ – should come as a great relief to those who care about free speech and due process on our nation’s campuses,” said FIRE President Greg Lukianoff. “Colleges have been bewildered trying to reconcile their obligations under the First Amendment with the requirements of the ‘blueprint’ – essentially an impossible task. OCR and DOJ now need to directly inform our nation’s colleges and universities that they need no longer face that dilemma.”
From a legal stand point it is important that universities are given a clear definition of sexual harassment and who is liable when the behavior is allowed to persist. Students our workers who believe they are being sexually harassed should contact a Boulder sexual harassment attorney to determine if they have cause to file a sexual harassment lawsuit.