The new federal guidelines for how colleges should handle sexual-harassment cases aren’t just unreasonable. They’re hostile to reasonableness in principle.
The Justice Department and the Education Department’s Office for Civil Rights set forth the rules in a letter they sent in May. The letter was addressed to the University of Montana but says it should serve as “a blueprint for colleges and universities throughout the country.”
The letter criticized the university for defining “sexual harassment” too narrowly. . . the federal government said colleges should treat “any unwelcome conduct of a sexual nature,” including “verbal” conduct, as harassment. Such conduct, the Office for Civil Rights has explained, runs the gamut from “making sexual propositions” to “spreading sexual rumors.”
The university also erred, according to the letter, in saying that conduct qualified as harassment only when “an objectively reasonable person” would find it “offensive.” Harassment may occur, then, when someone’s conduct triggers even an objectively unreasonable complaint. The federal government has put universities on notice that they need to take any complaint, however little merit it may seem to have, very seriously.
The letter went on to instruct colleges that “taking disciplinary action against the harasser” may be appropriate, and even required, before the investigation into the complaint is finished -- that is, before it is determined that the “harasser” is actually a harasser.
Hans Bader, a former lawyer for the Office for Civil Rights, notes that the federal guidelines for universities go well beyond what courts have said is acceptable policy against sexual harassment. The Supreme Court has taken the old-fashioned view that conduct has to be objectively offensive to count as harassment. Asking someone for a date, Bader points out, could theoretically run afoul of the new standard.