U.S. Commission on Civil Rights Hears Testimony on Sexual Harassment, First Amendment


Read more of our coverage on consent and sexual assault on U.S. college campuses here.

The U.S. Commission on Civil Rights, a bipartisan, independent agency responsible for investigating civil rights issues, held a briefing on Friday to discuss the effects of recent federal guidance on Title IX sexual harassment law in schools, and whether that guidance might come in conflict with the First Amendment. 

The hearing centered around the 2013 “Montana agreement,” a resolution reached between federal agencies and the University of Montana at Missoula after the university and local law enforcement were found to have failed to adequately address allegations of sexual assault and harassment. Failure to protect students from sexual violence and harassment is a violation of Title IX, a statute that protects students from gender-based discrimination, and violating Title IX puts schools in jeopardy of losing federal funding. 

The Montana agreement was only binding on the University of Montana at Missoula, but the U.S. Department of Justice (DOJ) and the U.S. Department of Education’s Office of Civil Rights (OCR) called it a “blueprint” and a model for other schools around the country. 

Some witnesses at the hearing were concerned that this “blueprint” broadened the definition of “sexual harassment” in a way that could infringe on free speech rights. Greg Lukianoff of the Foundation for Individual Rights in Education and Ada Meloy of the American Council on Education testified that the Montana agreement defined sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” This definition, they claimed, is an alarmingly broad standard that could allow student discussion of gender roles or Lolita to be considered harassment.

However, the definition of sexual harassment used in the Montana agreement is not new, and not all potential acts of sexual harassment can trigger disciplinary measures. To violate Title IX, a school must fail to take “immediate effective action” against an offense it knew or should have known about, and that offense has to create a “hostile environment” for the victim that is “sufficiently serious to deny or limit the student’s ability to participate in or benefit from the program.” Hostile environments can be created either by severity or pervasiveness; that is, a single rape or sexual assault can be enough to create a hostile environment, but so can repeated incidents of unwelcome sexual advances or intimidation. 

DOJ and OCR officials clarified during the hearing that the definition of sexual harassment hasn’t been broadened. Rather, they said, the agencies criticized Missoula for “conflating the definitions of ‘sexual harassment’ and ‘hostile environment’” in a way that discouraged students from coming forward. It’s not the student’s job to determine whether their harassment created a hostile environment, said OCR principal deputy assistant secretary Seth Galanter, but the university’s. “You have to be open to all complaints, and then you have to figure out if it’s a hostile environment,” Galanter said. Because sexual harassment and assault are so severely underreported, Galanter said, it’s important to reduce barriers that discourage students from reporting. Moreover, a student’s subjective experience of offense isn’t enough to determine a hostile environment; “objective” measures of what a “reasonable person” would find offensive have to be considered as well as subjective factors. 

The Montana agreement also clarified that a “preponderance of the evidence” standard should be used in adjudicating sexual assault complaints, rather than a stricter “clear and convincing evidence” standard. About 80 percent of schools already use this standard, officials said. The National Women’s Law Center argues that the preponderance of the evidence standard is appropriate for sexual misconduct because of “the unique barriers that sexual harassment and violence complainants face,” and because universities aren’t able to find students guilty of a crime or a civil liability.

“Schools can take steps to meet their obligations under Title IX that are entirely consistent with the First Amendment,” said Fatima Goss Graves, National Women’s Law Center vice president for education and employment. “There is no constitutional right to be a bully.” 

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  • fiona64

    I think most people are bright enough to recognize that a classroom discussion of an assigned text is not a “hostile environment.” Cat-calling yahoos in the quad, OTOH …

  • Mark Neil

    “It’s not the student’s job to determine whether their harassment created a hostile environment, said OCR principal deputy assistant secretary Seth Galanter, but the university’s. ”

    But that’s not functionally how it works, now is it? Regardless of what the school rules, if the student has decided for themselves that an incedent constitutes creating a hostile environment, and the schools fails to come to the same conclusion, that puts them in line for a title IX lawsuit that, by virtue of the pandering to women and placing their feelings above the rights of others that is currently underway, the school is assured to lose.

    • Arekushieru

      ‘Pandering’ to women? It’s precisely BECAUSE the universities pander to MEN that these women’s voices should be heard even MORE loudly. Oops. Would you say that giving men 500 dollars in extra loans, and keeping women’s financial remuneration to the same level, while making excuses left, right and center why the status quo should remain, then even foregoing that when some privileged whiny male like yourself complains is pandering to women? No? Then you are a fucking hypocrite.

      • Mark Neil

        I’m not aware of men getting “extra” loan… but I DO know women have significantly greater access to bursaries and scholarships (you know, that don’t need to be pad back) by schools and government (4 times, according to this site http://www.nerdwallet.com/blog/nerdscholar/2013/nerdscholar-scholarship-study-5000-private-scholarships-analyzed/ ). I also know men are required to register for the draft in order to akin access to ANY kind of loan or government assistance. But do, please provide a source for your claim.

        And I’m not entirely sure how your assertion is actually a counter to my claim. All it is is an emotional appeal intended to distract the point, not address it. Perhaps you should stay on point. Do you deny that, as the system currently works, if a woman does not like the outcome of the hearing, despite all the policies that are put in place that favour her, she still has the option of suing the college under title IX? And as such, it is, in fact, the accuser, that decides what is and isn’t a hostile environment?

        And as you clearly seem to have taken offense to my use of “pandering”, I will note that men’s due process and presumption of innocence HUMAN RIGHTS are routinely being stripped away on college campuses, all because the women’s lobby is placing women’s feels above those rights… and government is acquiescing. So yes, women ARE being pandered to. You want to disagree, then do so, but knock it off with the emotional appeals and ad homs… Cause you’re really only proving my point… that emotion and feels are all you feminists seem to have to drive any discussion.

        • Arekushieru

          Um, do you lack reading comprehension skills? I was CLEARLY making an ANALOGY, not a claim? Oops?

          So much for debating logically with someone who clearly does not understand the term. And who argues based on HIS emotional feels because: 1) quite frankly, he cannot debate a point that is set out in as cold, concise and succinct terms as possible when compared to making the only other analogy I COULD have used, one that I’m SURE he could have had even MORE success in using to buttress his oh-so-patronizing claim that feminists argue based on ‘emotional feels’. In short, you are asking me to stay on topic precisely because you want to push me into a corner where I can’t use anything BUT what you deem ‘emotional feels’ and 2) you, YOURSELF, have provided no facts, just ‘emotional feels’, but, of course, it’s okay if it’s a man doing it but not if it’s a woman doing it.

          And that last is where you are proven wrong. See, rape apology like yours is rampant. (Unless you ACTUALLY believe that just because someone isn’t convicted that they’re innocent? I think someone should learn 2 The Innocence Project. Because, if your ASSumption were to hold true, everyone who is convicted would also definitely be guilty, but TIP happens to prove you wrong, there!) It’s what allows most men accused of rape to get off with a slap on the wrist or no punishment, at all.

          And it is your ‘innocent until proven guilty’ standard which HELPS these men to get acquitted so frequently, because you so effectively wield the reverse application against their accusers, “Guilty until proven innocent”. And even THAT is something which doesn’t actually hold true even if a conviction is upheld for the accused. Usually the victim is still treated as if she (yes, she, because women are still the majority of rape victims and even if men are victims of rape, it is STILL other men that are the perpetrators. Chew on THAT for a little bit, why dontcha, before making the ASSumption that men are accused of rape more frequently because women have it IN for them. Oops) were the one who has done something wrong. That stigmatization and shame that comes from people like yourself (something that you’ve clearly proven holds to be true for you, as well, with not only your comment regarding ‘policies that FAVOUR’ women, since policies that ‘favour’ women would not generally lead to such low rates of conviction or accusations actually going forward especially when compared to other criminal charges, but the comments immediately preceding and following it).

          But you all still get all these emotional feelies about men ‘falsely accused’ of rape, without ever considering WHY a women would go through all that HELL (that hell that doesn’t just start with the judicial process, but LONG BEFORE she was raped all the way up to the social stigma she experiences just AFTER being raped, to making a statement to the police and having to deal with what’s called the ‘second rape’ for a REASON, to YEARS after the trial was finished, whether or not the accused was acquitted or convicted) just to make a false accusation OR that human biases CAN play a role in acquitting someone who is ACTUALLY guilty? What men have to experience after being acquitted of a rape accusation is NOTHING compared to what women have to experience, EITHER WAY, btw. AW.

          • Mark Neil

            “do you lack reading comprehension skills? I was CLEARLY making an ANALOGY, not a claim?”

            Yes, but an analogy implies some degree of truth. You may not have meant 500 dollars specifically, but you DID imply that men got “SOMETHING”. Yet, that something is unclear, and I challenge that men do, in fact, get that something, that “extra loan” you imply in your analogy. You don’t get to make shit up in an analogy and then, when called on it, just claim it was an analogy and is entirely meaningless.

            “quite frankly, he cannot debate a point that is set out in as cold, concise and succinct terms as possible”

            Which is it, an analogy or a cold, concise and succinct argument? And given I still have no idea what you’re actually trying to assert, other than men have it all and women are victims of whatever. Which currently has no factual basis.

            ” In short, you are asking me to stay on topic precisely because you want to push me into a corner where I can’t use anything BUT what you deem ‘emotional feels’ ”

            So… are you condescending feminism is based on emotional feels? That you don’t actually have any legitimate arguments to make that aren’t based on emotion? Cause that’s what it looks like to me. Whinning that I’m forcing you to stay on point, rather than straying away and deflecting… and you have nothing but emotional rhetoric to actually argue the point.

            ” you, YOURSELF, have provided no facts, just ‘emotional feels’,”

            No facts? I at least provided evidence that, despite your claim/analogy of men getting more financial support, that women, in fact, get 4 times more. And you insulted me, calling me unintelligent and lacking in reading comprehension (seems rather an emotional reaction to being prove wrong) for doing so. I also asked you to address a number of questions, which, rather than addressing, you have lashed out.

            “See, rape apology like yours is rampant.”

            Nothing I said is rape apologia… though the accusation is certainly another emotional appeal.

            “Unless you ACTUALLY believe that just because someone isn’t convicted that they’re innocent?”

            Not sure where I even suggested as much… but I do tend to stand by the conviction numbers, as, for every innocent person jailed in a court of law, there is likely a guilty person set free by that same court, so it balances for the purposes of using those numbers. But again, I have no idea where you even got this line of reasoning from. It’s like you’re just flinging shit and hoping something sticks. I’m well aware of the innocence project, and f anything, it demonstrates the importance of due process, and the consequences when those rights are stripped away, as they currently are in academia.

            “And it is your ‘innocent until proven guilty’ standard which HELPS these men to get acquitted so frequently”

            Kind of proving my point about the feminist assault on due process.

            ” because you so effectively wield the reverse application against their accusers”

            Not true. The accusers aren’t on trial… the accuser isn’t the ones the state is seeking to strip of their rights to freedom. The accusers aren’t assumed to be anything unless and until they are charged with a crime, such as filing a false report… at which time, they ARE given the presumption of innocence. It’s telling that you seem to have a problem with men who risk being put in jail for decades not automatically being assumed guilty, or with women who risk absolutely nothing, and have plenty to gain (be it justice for actual victims, or revenge/excuses/attention/etc for false accusers) not being believed at face value. Seems you don’t have a problem assuming so many men will rape, but the idea a woman might lie seems entirely implausible. Seems rather sexist and hateful of men to me.

            “yes, she, because women are still the majority of rape victims and even if men are victims of rape, it is STILL other men that are the perpetrators”

            That’s not true ether. Just another emotional appeal. The CDC’s NISVS study showed men being raped on par with women… though the feminist in charge thought acknowledging that would harm women, so reclassified men raped by women under the category “forced to penetrate”, and then ignored that category in the summary. If you examine the 12 month figures you will see the numbers are identical. (HINT: that wasn’t just a claim, it was evidence. I provided sufficient information to look up the details yourself). But you keep pushing your victim cult rhetoric to make women out as the only victims worth a damn, appealing to emotion to villainize me as some kind of rape apologist.

            ” before making the ASSumption that men are accused of rape more frequently because women have it IN for them.”

            Where did I make any such “assumption”? Or are you just making yet another emotional appeal

            “something that you’ve clearly proven holds to be true for you”

            Really? Where? You keep trying to stick these stigmatized accusations on me, but I don’t see where I’ve even mentioned anything related to these things, let alone made such assertions as you’re accusing me of.

            “with not only your comment regarding ‘policies that FAVOUR’ women”

            I notice for all your emotional rhetoric, you haven’t actually answered any of my questions. You haven’t actually denied any of the points I’ve raised. You just spit out a 577 word screed of emotional rhetoric and ad homs.

            “without ever considering WHY a women would go through all that HELL”

            There are many examples of women going through that “hell” for such trivial reasons as to explain infidelity, being late for curfew, being late for class, avoiding a test, etc, etc etc. Not to mention revenge.

            “that hell that doesn’t just start with the judicial process, but LONG BEFORE she was raped”

            False accusers were raped? See, that’s your problem. You aren’t even capable of seeing false accusers as “not real victims”. For someone who’s making a false accusation, THEY WEREN”T RAPED, and so all the trauma of going through it again isn’t real. But you lot can’t even see this. You still see them as victims of rape, suffering the same trauma’s. But they aren’t.

            ” to making a statement to the police and having to deal with what’s called the ‘second rape’ for a REASON,”

            People like you disgust me. Have you ever actualy experienced reporting a rape to police? Or are you just repeating the bullshit women who never bothered to report to police “feel” they would have suffered had they done so. So many feminist promote this idea that going to police is a bad thing. So many feminists are responsible for dissuading and discouraging real victims from going to police. And then they pick these victims up, and use them to push their agenda. Encouraging them to believe they made the right choice, and further undermining police efforts, in order to make more and more demands. I don’t know of any women who have been raped and gone to police, who then turn to feminism. Only those who never actually went to police seem to flock to the very feminists who discouraged them from actually reporting, and then continue to promote the very same rhetoric that prevented them from coming forward in the first place. It’s disgusting. Loathsome.

            “just to make a false accusation”

            Again, if they are making the false accusation, they weren’t actually raped, like you rely on for emotional pull.

            “OR that human biases CAN play a role in acquitting someone who is ACTUALLY guilty”

            As the Duke Lacrosse case demonstrated, that human bias can pull both ways. Or do you pretend Nifong didn’t break the law in his efforts to convict innocent men? Or does this individual example not count, but your indivdual examples are representative?

            “What men have to experience after being acquitted of a rape accusation is NOTHING compared to what women have to experience, EITHER WAY”

            More “FEELZ”. More putting women’s emotions over the rights of men. After all, this statement comes after an attempt to marginalize the attempt to maintain due process for accused due to false accusations, and comes down to “women feel really bad after being raped (whether they actually were raped or not), so men SHOULD be presumed guilty until proven innocent. Again, you prove my point.

            Reply or don’t, I don’t care. This conversation was 5 days old and your revived it and did absolutely nothing but prove me right. 5 Days and you come back with absolutely NOTHING. I’ll assume that’s the best you have. I won’t be following this converstion any longer.