Sen. John McCain (R-Ariz.) accused a group of lawyers with the Justice Department's Civil Rights Division last week of "single-handedly" redefining the meaning of sexual harassment at colleges nationwide. Such a redefinition could violate the free speech rights of students and teachers, McCain argued in a letter to Attorney General Eric Holder.
In May, following an investigation into how the University of Montana handles rape and sexual violence on campus, the Justice Department and the Education Department had jointly announced a "resolution agreement" that laid out a set of policy reforms for the school. The Foundation for Individual Rights in Education (FIRE), a free-speech watchdog group, said the plan waters down the definition of sexual harassment to "any unwelcome conduct of a sexual nature," including speech.
"Given that the interpretation of Title IX has such a widespread impact on the well-being of young students, it is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ -– through a settlement -– rather than through congressional or regulatory action," McCain wrote this past Wednesday.
According to FIRE, the definition in the agreement removes the need to prove that the alleged misconduct was offensive to an "objectively reasonable" person. As such, FIRE argued, the Justice Department has mandated an unconstitutional sexual harassment code that could violate free speech.
McCain posed several specific questions in his letter, including under what authority the Justice Department had apparently revised Title IX jurisprudence and whether this interpretation of sexual harassment would increase the chance of wrongful conviction. The senator asked whether a student asking another student out on a date could now constitute "unwelcome conduct of a sexual nature" or if a professor's use of masculine pronouns to cover men and women ("Each student must bring his own laptop") might be grounds for a sexual harassment complaint.
McCain and his fellow critics are particularly concerned about the language of the University of Montana plan because in a related statement, Deputy Assistant Attorney General Roy Austin Jr. described it as "a blueprint for reform that can serve as a model for campuses across the nation."
FIRE President Greg Lukianoff wrote in a Wall Street Journal op-ed that because Austin had called it a "blueprint," colleges would view it broadly as the law of the land.
"Given that the [resolution agreement] represents an interpretation of federal law by major federal agencies, most colleges will regard it as binding," Lukianoff declared. "Noncompliance threatens federal funding, including Pell grants and Stafford loans" -- both major sources of funding for public and private higher education.
The agreement pushes Montana toward more aggressively combating sexual misconduct by its students, after finding the university failed to promptly adjudicate reports of assaults and rape. It was released following federal complaints against several other colleges and universities contending that the institutions were not taking sexual assault reports seriously and letting assailants go unpunished.
The responsibility to handle such matters falls to the universities under the Title IX gender equality law, although students can still opt to take sexual misconduct allegations through the courts.
A number of conservative columnists and think tanks have criticized the University of Montana resolution, taking their cues from FIRE.
The Education Department's Office for Civil Rights responded to FIRE in a May 29 letter, saying that the agreement "did not create any new or broader definition of unlawful sexual harassment." Colleges and universities are still required, the office wrote, "to examine both whether the conduct is objectively offensive and its subjective impact on an individual."
John DiPaolo, deputy assistant secretary for policy in the Office for Civil Rights, also defended the resolution in June at a meeting of the National Association of College and University Attorneys, calling it "a blueprint for other colleges, not the blueprint."
Still, McCain argued in his letter that the Montana agreement "may pose a threat to academic freedom in the classroom." He requested a response from the Justice Department by July 17.
UPDATE: 5:30 p.m. -- Dena Iverson, with the DOJ's Civil Rights Division, defended the resolution with the University of Montana in a statement to The Huffington Post:
"The Department's agreement with the University of Montana is constitutional, requires necessary reforms to ensure a safe environment for all students, and follows well established OCR guidance defining 'sexual harassment' and 'a hostile environment.' To ensure students are not discouraged from reporting harassment, the agreement allows students to report when they have been subjected to unwelcome sexual conduct, and requires the University to evaluate whether that conduct created 'a hostile environment.'”
Iverson said the department is reviewing McCain's letter.