Newsletter

September 2013

Sexual harassment and academic freedom

David Moshman

The
University of Montana has received a 31-page letter from the U.S. Departments of
Justice and Education. It’s not a love letter. And it’s not just for them.

The
letter puts higher education on notice that mere speech can be sexual harassment
if any listener is offended by its sexual content. The Foundation for Individual
Rights in Education (FIRE) and feminist civil libertarian Wendy Kaminer, among
others, have condemned the letter as an extraordinary threat to freedom of
speech about matters of sexuality at all colleges and universities.

It
is also an extraordinary threat to academic freedom. Let me start with a bit of
personal history.

I’m
setting my academic freedom time machine to the early 1990s era of high
political correctness, when many argued, at least with respect to sexuality,
that the right not to be offended outweighs freedoms of expression and
discussion. At the University of Nebraska−Lincoln (UNL) a psychology graduate
student named Toni Blake studied and taught human sexuality.

One
day in 1993 Blake brought a banana to a class session on contraception and used
it to illustrate the application of a condom. Warning about the danger of
impregnation prior to ejaculation, she joked that men, like basketball players,
"dribble before they shoot."

A
male student was not amused. He subsequently accused her of sexual harassment,
charging that she "objectified" the penis and thus created a hostile academic
environment for him as a man.

I
was asked to assist her. The student was a jerk, she said; he was angry because
she had objected to his coming to class drunk. But how could we convince
administrators that his claim of being offended, even if true, was insufficient
to support a charge of sexual harassment? Administrators were under pressure to
act on behalf of anyone who claimed to be offended by sexual expression of any
sort.

Straightforward and humorous, Blake was probably an excellent instructor. I once
ran into her when I was out with my wife, who knew of the case but had never met
her and didn’t know her by name. I began introductions, struggling to explain
politely who Toni was. She cut right in and identified herself: "I’m the banana
lady."

Blake was never found guilty of sexual harassment. But she was advised by her
department chair to delete material on human sexuality from her courses in order
to avoid further problems. Others responsible for teaching about sexuality at
UNL watched with concern and made their own curricular decisions.

The
Academic Freedom Coalition of Nebraska (AFCON) subsequently formulated a
Statement on Sexuality and Academic Freedom (adopted in 2000) based on its
general Principles of Academic Freedom (adopted in 1999). Central to the
analysis of sexual harassment is a distinction between two types of cases,
represented by two examples.

In
Example 1, "a student in the course of class discussion expresses the view that
homosexuality is sinful and disgusting, whereupon a second student claims that
the views of the first are stupid and offensive." In Example 2, "a student
repeatedly targets another student with epithets that the second clearly finds
upsetting, even after being asked to stop."

AFCON’s statement specifies:

Individuals have a right to believe whatever they choose about matters of
sexuality and to express their views even if those views are deemed offensive or
otherwise objectionable. … It is inconsistent with academic freedom to limit
freedom of expression to the expression of ideas that will not be deemed
offensive.

The
topic of sexuality, then, is subject to the same principles of academic freedom
as any other topic. Sexual harassment is wrong because it is harassment, not
because it is sexual. We must define harassment strictly so we can oppose it
consistently without infringing on the freedom to teach and talk about
sexuality. AFCON specifies:

Harassment, strictly defined, is a pattern of actions specifically directed
against a particular individual with the intent of humiliating, intimidating, or
otherwise harming that individual. Thus defined, harassment is not protected by
norms of academic freedom regardless of the sexual content of any ideas that may
be expressed as part of the act of harassment.

Neither student in Example 1 should be punished, then, though the teacher may
and should use noncensorial means to encourage civil discussion. The student in
example 2, in contrast, is guilty of harassment regardless of whether the
epithets are sexual.

This analysis applies at all levels of education. With respect to sexuality,
AFCON’s principles provide more stringent protection of academic freedom in
kindergartens and middle schools than the federal government deems appropriate
for universities.

The
new standards for sexual expression are not just unconstitutional. They are a
major threat to the academic freedom to teach and learn about human sexuality.

Huffington Post: The Blog May, 24, 2013.