by David L. Hudson Jr., First Amendment Scholar, and Lata Nott, Executive Director, First Amendment Center
Last updated: March 2017
Universities must combat sexual harassment, a pervasive problem in society. Polls have indicated that an alarmingly high number of female students have been subjected to some form of harassment during their college years. The issue is especially fraught when the harassment is inflicted by a professor.
Moreover, public universities have a legal responsibility to prohibit sexual discrimination in education. A federal law known as Title IX requires such action.1 Title IX provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under Title IX, Congress can withhold federal funds to universities that allow sexual discrimination in the university setting.
This duty to prevent sexual discrimination extends to so-called “hostile environment” harassment. The U.S. Department of Education defines hostile environment discrimination as follows:
“Hostile environment harassment occurs when unwelcome conduct of a sexual nature is so severe, persistent, or pervasive that it affects a student’s ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment.”
— Office of Civil Rights, “Questions and Answers about Sexual Harassment”
Harassment law prohibits severe and pervasive harassment that alters the conditions of the workplace or classroom. Professors who create a hostile learning environment can be subject to discipline under a university sexual harassment policy.
The rationale behind this is fairly straightforward when a professor’s speech is directed at a particular student for sexual favors. But when a sexual harassment policy is applied to speech that a professor makes to an entire class, it raises substantial First Amendment concerns.
Universities represent a unique marketplaces of ideas where the thought of silencing educators’ in-class expression sounds downright repressive. After all, the First Amendment should provide for robust discussion in a university classroom setting. First Amendment advocates assert that many university professors chill their own speech in order to avoid saying anything that might offend students. This, the advocates warn, could lead to a sterile learning environment.
“If the speech is not repetitive, severe and persistent, then generally it should receive protection,” says University of Pennsylvania history professor Alan Charles Kors.
Despite arguments that punishing professors for in-class speech violates the First Amendment, several university professors have faced discipline for violating sexual harassment regulations based on their in-class speech.
In recent years, the interpretation of what constitutes sexual harassment under Title IX has expanded greatly. On May 9, 2013, the Departments of Justice and Education sent a letter to the University of Montana that purported to be a blueprint for all colleges. The letter stated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’”, including speech. It also stated that conduct does not need not need to be “offensive to an objectively reasonable person of the same gender in the same situation,” in order to be considered harassment (although that factor can be taken into account when determining whether certain conduct is harassment). Essentially, the letter established that a speaker may be punished for any speech that references sex that causing a student offense, even if that reaction is irrational, unreasonable, or unforeseeable.
On April 22, 2016, a letter from the Department of Justice to the University of Mexico went even further, stating that unwelcome conduct of a sexual nature, including speech, is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo,” and that colleges and universities that receive federal funding (i.e. most of them) have an obligation to investigate all such incidents of unwelcome speech.
One notable recent incident involved a professor facing charges under Title IX for a writing an opinion piece. In February 2015, Northwestern University professor Laura Kipnis wrote an article in the Chronicle of Higher Education, observing that the university’s ban on sexual relations between teachers and students might be a product of a growing paranoia about sex and a rising sense of vulnerability and trauma in this generation’s college students. Kipnis’ article briefly mentioned two lawsuits against a Northwestern University professor, brought by students who claimed they had been sexually assaulted by him. The article did not name the students. Nevertheless, these students accused Kipnis of creating a hostile environment with her article and the school opened up a Title IX investigation.
Although the investigation eventually found that Kipnis had not engaged in sexual harassment, when such investigations are prevalent they can have a chilling effect on what professors write, say, and teach in their classrooms.
Law professor Nadine Strossen gave a list of particularly egregious examples:
“The Naval War College placed a professor on administrative leave and demanded that he apologize because during a lecture that critically described Machiavelli’s views about leadership he paraphrased Machiavelli’s comments about raping the goddess Fortuna. In 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 a course unit entitled Drugs and Sin in American Life From Masturbation and Prostitution to Alcohol and Drugs.
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. And yes, that was defining it, not defending it.
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 student’s attention.
And I could go on.”
We only receive guidance about whether a particular application of Title IX is constitutional when the case is appealed and ends up in front of a court. Here are a few examples of such cases from the federal court system:
In 1992, several students at the University of New Hampshire accused tenured faculty member and writing instructor Donald Silva of sexual harassment in part because of his comments in class. These allegedly included:
Eight students filed written complaints with the university. The school created another section of the class and 26 students transferred from Silva’s class to the other instructor. University officials reprimanded Silva for violating the school’s sexual harassment policy. He filed a grievance that was denied. The university suspended him without pay.
At a formal hearing, a panel found that Silva’s comments “contributed to a hostile academic environment.” The university placed Silva on leave without pay for one year and required him to receive counseling before teaching again.
After losing his appeals in the university system Silva sued in federal court, contending that his First Amendment rights were violated. A federal district court sided with Silva.
The court focused on the fact that some of Silva’s statements, such as the vibrator statement, were not necessarily sexual. The court also emphasized that the university’s sexual-harassment policy did not prohibit nonsexual verbal conduct.
“The court finds that Silva’s classroom statements advanced his valid educational objective of conveying certain principles related to the subject matter of his course,” the court wrote. “The record demonstrates that Silva’s classroom statements were made in a professionally appropriate manner as part of a college class lecture.”
The court concluded that the university’s sexual harassment policy “as applied to Silva’s classroom speech is not reasonably related to the legitimate pedagogical purpose of providing a congenial academic environment because it employs an impermissibly subjective standard that fails to take into account the nation’s interest in academic freedom.”
Legal commentator Lisa Woodward wrote that “the court’s great deference to academic freedom effectively negated the mandates of Title IX.” However, Kors, president of FIRE, disputes this characterization, calling the prosecution of Silva “beyond belief.”
Dean Cohen taught a remedial English class at San Bernardino Valley College. He used a self-described “confrontational teaching style designed to shock his students and make them think and write about confrontational subjects.”
In 1992, he read articles to his class that he had published in Hustler and Playboy magazines. He led classroom discussions on topics such as obscenity, cannibalism and consensual sex with children.
After a student complained, the university determined that Cohen had violated the school’s sexual harassment policy. The board of trustees ordered Cohen to warn students ahead of time of his “confrontational style,” attend a sexual harassment seminar, and be cognizant of how his teaching style might affect his students.
Cohen sued the school, claiming a violation of his First Amendment rights. A federal district court rejected Cohen’s arguments, finding the sexual harassment policy constitutional.
On appeal, the 9th U.S. Circuit Court of Appeals reversed, finding that the policy was “simply too vague as applied to Cohen in this case.”
The court reasoned: “Cohen’s speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy’s nebulous outer reaches to punish teaching methods that Cohen had used for many years.”
Louis Rubin was a tenured education professor at the University of Illinois. In 1990, Rubin allegedly made numerous in-class remarks of a sexual nature, including: discussing his prior sexual experiences, telling stories about his ex-wife and daughters, telling dirty jokes and making demeaning sexist comments.
For example, Rubin asked a student if she would marry a paraplegic with “no vital functions from the waist down.” Rubin joked that teachers make good prostitutes because teachers make their customers (students) “do it again and again until they get it right.”
Rubin argued that he was “teaching of modern values, morals and social conditions.” He also said that he talked about topics of a sexual nature because such comments held the interest of his students.
The university removed Rubin from the classroom. After his termination, he sued, claiming a violation of his rights under the First Amendment and academic freedom. A federal district court rejected his arguments, finding that his in-class comments were “exceedingly remote from the First Amendment’s concern with protecting socially valuable expression.”
“Rubin’s classroom comments which have a sexual focus do not appear connected to the course content and legitimate objective of teaching students how to teach elementary school social studies,” the court wrote. “The degree of departure from the expected course content to Rubin’s comments appear(s) extensive.”
The courts have struggled to come up with a consistent way to balance a university’s duty to prevent sexual harassment with its duty to protect freedom of speech and academic freedom. Part of the problem comes from the nebulous definition of academic freedom. Some argue that academic freedom protects a university only from the state. Others argue that academic freedom includes an individual professor’s right to teach and conduct class as she or he sees fit without limits.
Some courts will apply the generalized test for public employee speech. Other courts will apply a special balancing test that takes into account the university’s position as public employer, academic freedom and the context of the university classroom, as the 11th Circuit did in Bishop v. Aronov . Still other courts will analyze a professor’s free-speech claims using the U.S. Supreme Court’s “reasonably related to a legitimate pedagogical (or educational) interest” standard from the high school press-censorship case of Hazelwood School District v. Kuhlmeier. A 10th Circuit case in 2000, Vanderhurst v. Colorado Mountain College District, made reference to this standard.
Legal commentators have different views on how the courts should balance the competing interests of preventing harassment and protecting freedom of speech.
Some experts emphasize the duty to prevent sexual harassment and discrimination. “Sexually harassing behavior is not tolerated in the workplace, and it should not have to be tolerated in the classroom,” writes legal commentator Lisa Woodward.
Similarly, George Mason University law professor Jon Gould warns that sometimes swing to far in favor of university professors. He writes: “Unlike employment cases, courts often seem to balance faculty and student conduct with concerns for ‘academic freedom,’ in the process dismissing collegiate claims that would go forward in the workplace.”
Gould adds that “academic freedom has the potential to become a defense that prohibits the prosecution of cases that deny women equal treatment in the university setting.”
“What is needed is a clear test for evaluating the free speech rights of teachers in the classroom in situations where that speech collides with the students’ rights and the universities’ responsibilities,” Woodward writes.
But Professor Kors says that Title IX must give way to the First Amendment when the two come into direct conflict. “No regulation or statute conceivably may trump the First Amendment,” he says. “Universities should always err on the side of academic freedom and free speech because we live in a free society and we want free citizens.”
“In effect, what has happened at some universities is that a veto power over professorial speech has been given to those that may have a subjective response of taking offense at certain speech,” Kors says.
The key, according to Robert Richards, head of the Pennsylvania Center for the First Amendment and an associate dean at Penn State University, is whether the speech is germane to the subject matter.
“For example, if I was teaching a media law class I could use the word ‘fuck’ when discussing the Cohen v. California case (in which the U.S. Supreme Court reversed the conviction of a man for wearing a jacket bearing the words ‘Fuck the Draft’),” Richards explains. “It would be germane to the subject matter. However, if I used the term repeatedly in math class, that would not be germane.”
Both Richards and Kors, ardent defenders of the First Amendment, say that it often boils down to a question of professionalism. Richards emphasizes that he would not want to have an academic environment where many students felt uncomfortable.
Sexual harassment is a problem in society that should be remedied. Title VII, Title IX and a host of state anti-discrimination laws serve that high purpose. But when sexual-harassment charges are brought against professors solely for their in-class speech, the rights of free speech and academic freedom are threatened.