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.