The U.S. Department of Justice's Civil Rights Division just redefined "sexual harassment" for the University of New Mexico and the ramifications could extend far enough to include common, everyday speech as harassment.
The new definition is the result of an investigation into the university's handling of sexual harassment complaints by students on its Albuquerque campus. It was centered on previous reports of students feeling they weren't taken seriously when reporting allegations of sexual misconduct and that UNM gave preferential treatment to certain students, such as athletes and fraternity members.
Because the publicly-funded university falls under Title IV and Title IX anti-discrimination requirements, the DoJ stepped in to make sure the prohibitions these regulations require are met. But several outlets are concerned that the federal government's conclusions have threatened the First Amendment rights of students.
This is what the DoJ sent to UNM's President Robert Frank to help him "clarify" what constitutes sexual harassment:
[Current UNM] policies… fail to define sexual harassment in a consistent manner, and conflate the definition of harassment with the definition of a hostile environment…
In addition, each of these policies mistakenly indicates that unwelcome conduct of a sexual nature does not constitute sexual harassment until it causes a hostile environment or unless it is quid pro quo. Unwelcome conduct of a sexual nature, however, constitutes sexual harassment regardless of whether it causes a hostile environment or is quid pro quo. Indeed, federal guidance defines sexual harassment as "unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence."
Hostile environment is not part of the definition of sexual harassment, nor is it required for "unwanted conduct of a sexual nature" to be deemed sexual harassment.
The Foundation for Individual Rights in Education (FIRE) believes this broadened definition will have a dramatic impact on how students engage in free speech on campus.
"The DOJ, like the Department of Education’s Office for Civil Rights (OCR) before it, is counting on the unpleasant connotations of the term 'sexual harassment' to keep the media and public from noticing that it is defining an enormous amount of everyday speech as sexual harassment," writes FIRE's Joseph Cohn. "Did you overhear someone retelling an Amy Schumer joke about sex that you found unpleasant? According to the DOJ, that makes them a harasser—even if they only did it once and didn’t do it again after you asked. If that’s harassment, the term is devoid of meaning."
Furthermore, the Pandora's box this opens for everyone on campus could essentially make, as Cohn states, "99.9% of Americans into harassers at some point in their lives." This will spawn investigations and will encourage "silence" among students and professors for fear they may brought before Title IX "inquisitions" and have their lives or careers ruined.
Hans Bader is a former attorney for OCR and points to Title IX policy that imposes penalties against those accused of sexual harassment, which could include suspensions, no-contact orders, and even forbidding the accused from being in the same room/dorm/library, etc. as their accuser.
"If exclusion from key areas on campus can be triggered by a sexual harassment complaint over nothing more than a dirty joke or a criticism of feminism, the chilling effect will be huge," Bader recently wrote in The Washington Examiner.
FIRE says it supports these types of penalties on a case-by-case basis, but warns that the DoJ's "wholly subjective definition of sexual harassment" is "a recipe for censorship:"
FIRE often uses the example of jokes to illustrate the perniciousness of attempts to censor constitutionally protected speech, because it’s a simple and universal illustration that anyone can understand. But people should not be deceived into thinking that investigations into alleged sexual harassment will mostly be confined to “dirty jokes” or sex talk that the average American might care little about. The DOJ’s mandate to investigate all complaints under an entirely subjective definition of sexual harassment—even if the speech prompting the complaint is protected by the First Amendment—will result in more unjust and unnecessary investigations.