Missoula, MT– When the Department of Justice (DOJ) and the Department of Education (DOE) sent the University of Montana guidelines to revise their sexual harassment policies, in the wake of a sexual assault scandal, the agencies’ recommendations set of a firestorm of controversy. In light of that controversy, the DOJ and DOE allowed the university to revise the policy, but it hasn’t, yet, been approved.
In the original guidelines, the DOJ and DOE had such a broad definition of what types of speech constituted sexual harassment that free speech activists pricked up. The guidelines defined sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct,” even if an “objectively reasonable person of the same gender in the same situation” would not perceive the behavior as offensive.
The Foundation of Individual Rights in Education (FIRE) feared that the broad definition meant that the simple act of asking a fellow student for a date, if it offended them, could be considered sexual harassment and would require disciplinary action. FIRE believed that very broad definition was a violation of a student’s freedom of speech.
The DOJ and DOE said the guidelines should serve as “blueprint” for all colleges and universities across the country to apply to their sexual harassment, but explained they “did not create any new or broader definition of unlawful sexual harassment,” giving colleges and universities discretion to determine if a student’s speech was offensive and warranted disciplinary action.
This story gained national attention and prompted Sen. John McCain to send a letter to the DOJ and DOE asking them to further clarify the policy and change it. While the agencies went of the defensive and explained that asking for a date did not constitute sexual harassment, they allowed the University of Montana to revise their policy.
UM’s revised definition changes the broad definition from “any” unwanted speech “could” be construed as sexual harassment, to “can” be considered sexual harassment, according to the University Herald. It’s a minor change, but when it comes to legal action, a simple word change can be a huge difference.
The University of Montana also vowed to protect a student’s right to free speech with their revised policy.
“The University of Montana’s new policy is not perfect, but it is significantly clearer and more cognizant of student and faculty expressive rights than the federal government’s May directive,” FIRE director of legal and public advocacy Will Creeley said in a statement.
Though the University of Montana has revised their policy in August and sent the revisions to the DOJ and DOE, it has not been approved by the federal agencies and they are well into the Fall semester, according to the University Herald.
There is no clear reason why the agencies have not approved the new policy. FIRE is calling on the agencies to approve the policy and says it is “disturbing” they have not done so.
“FIRE calls on the Departments to approve the new policy, retract the blueprint, and issue new, clear guidance that follows Supreme Court precedent and mandates a constitutional definition of sexual harassment,” FIRE Director of Legal and Public Advocacy Will Creeley said, per the University Herald.