John Banzhaf: University sexual harassment policy flawed

GW’s sexual harassment policy is very similar to one just found unconstitutional in a very recent decision by the U.S. Court of Appeals for the 3rd Circuit. The court struck down a very similar policy at Temple University even before it was applied in a specific situation. This follows several similar court decisions which suggest that rules limiting sexually harassing speech in workplaces cannot be applied to student speech in public universities.

Both university’s policies were modeled after those of the Equal Employment Opportunity Commission, but the court says that doesn’t make them constitutional. Indeed, it notes that “there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause. We have found no categorical rule that divests ‘harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection … some speech that creates a ‘hostile or offensive environment’ may be protected speech under the First Amendment.”

The decision is remarkable on several grounds.

First, the court enjoined any use of the challenged policy even though the university had toned it down in hopes of avoiding a trial. The court took this extraordinary action because it said there was no guarantee that Temple would not return to its unlawful ways.

Second, the court permitted a court challenge by a single student who merely claimed that the policy’s very existence chilled his freedom of speech and expression, even though there was no real evidence to support this, and the university had taken no action toward him. More specifically, he simply contended that, because of the policy, “he felt inhibited in expressing his opinions in class concerning women in combat and women in the military.”

Third, the complaint sought damages against Temple, its president and two faculty members. Although the court ordered only nominal damages because nothing concrete had happened to the student plaintiff, the ruling suggests students who are actually threatened by sexual harassment charges might be awarded substantial damages and brought before hearing bodies and that all those who participate could be potential defendants.

Perhaps it’s time for the Faculty Senate to reconsider GW’s sexual harassment policy.

The writer is a professor of public interest law at the Law School.

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