SEXUAL HARASSMENT & THE FIRST AMENDMENT presented by Saundra K. Schuster, J.D. .

SEXUAL HARASSMENT & THE FIRST AMENDMENT

presented by Saundra K. Schuster, J.D.

www.ncherm.orgwww.atixa.org

© 2012 ATIXA all rights reserved

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Case Study: Developing a Sexual Harassment Policy

You are the new Dean of Students at NMU, a public university, and your boss, the V.P, has charged you with developing a student Sexual Harassment Policy to be presented to the Board for ratification.

The VP has heard that harassment policies are being challenged across the country and she wants to make sure NMU’s policy is not vulnerable to challenge. The VP cautions you that the policy must reflect the college’s mission and be legally defensible.


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NMU’s Mission Statement:

“NMU is committed to providing an environment for learning that promotes equality, civility, tolerance and respect for human dignity. Students are provided with the opportunity to learn in an environment that reflects a wide range of ideas and interactions. In addition, students are entitled to interact in an environment free of discrimination.”


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You Know That:

A sexual harassment policy should contain general descriptions of behavior so that students are put on sufficient notice to enable them to conform their behavior.

You want the policy to state specifically that sexual harassment is prohibited.


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Your Policy Draft:

Sexual harassment is reprehensible and subverts the educational mission of the University.

All forms of sexual harassment of students by faculty, staff or visitors or sexual harassment by students is prohibited at NMU.

-continued-


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Definition

Sexual harassment is defined as any conduct, of a sexual nature, whether expressive, visual or physical, when:

Such conduct has the purpose, or effect, of interfering with an individual’s work, educational performance or status;

Such conduct has the purpose, or effect, of creating an intimidating, hostile, or offensive environment

-continued-


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In general:

Sexual harassment can include any unwelcome verbal, written, visual or physical conduct which offends, denigrates or belittles an individual because of a sexual or gender based characteristic.

-continued-


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Specifically:

Such conduct includes, but is not limited to: unsolicited derogatory or patronizing remarks, rude or disrespectful comments, jokes, demeaning or dismissive comments or behavior, slurs, mimicking, name calling, graffiti, innuendos, gestures, physical contact, stalking, threatening, bullying, or the display or circulation of written material or pictures.


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Defining Sexual Harassment

Includes both “Quid pro quo” and “Hostile Environment”

Our focus today is on hostile environment language, because many policies describe prohibited expression that creates a “hostile environment” in very broad terms that are often vague and ambiguous.


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The Problem?

When sexual harassment policies are used to:

Enforce civility Protect an individual’s “feelings” or self

conceptThis can lead to a legal challenge.


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Title IX

“No person in the United States shall, on the basis of sex, be excluded from participation, in be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”

The Act prohibits: disparate treatment, disparate impact and retaliation

That institutions publish regulations regarding sex discrimination

That every recipient establish grievance procedures


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Cases Creating Standard for Institutional Liability

Gebser V. Lago Vista (1998): standards for faculty/staff-to-student sexual harassment

U.S. Supreme Court: Davis v. Monroe County Board of Education (1999): standards for peer-to-peer sexual harassment

Justice O’Conner wrote: Deliberate Indifference is construed to mean “Not clearly unreasonable in light of the known circumstances”


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Additional Standards

The conduct must be so severe, pervasive and objectionably offensive such that it undermines the victim’s educational experience and denies equal access to an institution’s resources and opportunities

Additionally, for the institution to be liable for such conduct, there must be actual notice and a deliberately indifferent response, and

The institution must have had control over the harasser and control over the context of the harassment


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Challenges To Free Expression

DeJohn v. Temple University Lopez v. Candaele Layshock v. Hermitage School District

J.S. v. Blue Mountain School District

DeJohn filed an action against the university & its former president, alleging violations of DeJohn’s First Amendment rights and due process rights, and §1983 violations on the part of the president and professor.

DeJohn argued that the university’s sexual harassment policy was overbroad, and by its language it inhibited his ability to express his opinions in class concerning women in combat and in the military.

He felt if he expressed his views, he would be subject to actions and sanctions by the university, thus creating a chilling effect on his ability to exercise his constitutionally protected rights.

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Christian DeJohn v. Temple UniversityU.S. Court of Appeals, 3rd Circuit, August 4, 2008


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Christian DeJohn v. Temple University

Excerpt from Temple policy: “All forms of sexual harassment are prohibited, including. . . Expressive, visual or physical conduct of a sexual or gender-motivated nature when. . . (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment”

But the 3rd Cir. found the prior policy to be unconstitutional. that Temple’s use of such terms as “hostile” and “offensive” rendered their sexual harassment policy “sufficiently broad and subjective” as to be unconstitutional

The court awarded DeJohn nominal damages against the institution in the amount of $1.00.

The court the viability of the §1983 action against the university president for implementing an over-broad sexual harassment policy

This case is significant because of of the conflicting challenge to university administrators to support and uphold an open exchange of ideas while prohibiting discrimination and harassment on their campuses

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Temple modified its policy subsequently


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Lopez v. Candaele(2009)

Excerpts from Los Angeles Community College District’s policy:

“sexual harassment can include disparaging sexual remarks about your gender, repeated sexist jokes, dirty jokes or sexual slurs about your clothing, body or sexual activities, and display of sexually suggestive objects, pictures, cartoon, posters or screen savers.”


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U.S. District Court for Central District of Ca.

found:Policy was too broad, too vague and

prohibited a substantial amount of protected speech – even in relation to unprotected conduct that could be validly prohibited.

Court supported the argument that the policy created a chilling effect on speech


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Layshock V. Hermitage School DistrictJ.S. V. Blue Mountain School District,

U.S. Ct. Of App., 3rd Cir. En Banc 650 F.3d 205;

2011 U.S. App. LEXIS 11994(June 13, 2011)

Denied Cert


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Facts & Holding: Layshock: Using his off-campus computer and account, created a mock MySpace page about his high school principal. It is notable that: 1. His was the least offensive (he made fun of

the principal’s weight and made allusions to drug use and promiscuity) of 3 MySpace profiles created, and

2. Layshock was the only one suspended for the offense. (He was also given an additional number of sanctions that were eventually undone in an earlier injunction.)


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Facts & Holding J.S.: The site created about the principal was arguably more offensive than Layshock in that it made allusions to the principals being engaged in sexual activity with students. There was no overt disruption of campus short of: A 5 to 6 min. exchange where one professor

had told students to stop talking in class 3 times when they were talking about the website, and

A counselor had to find a substitute for a half an hour to deal with the situation.


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Facts & Holding: In the initial Ct. of App. hearing Layshock prevailed on First Amendment grounds. Because an additional case (J.S.) was released from the same Ct. the same day with a contra finding, the cases were reconsidered in an en banc hearing. All findings were made in favor of the students.


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These cases remind us that the Tinker standard is alive and well, and while student conduct may reach “outside the schoolhouse gate” we may not do so unless the sufficient nexus between speech and substantial disruption of the school environment existsThis is a reminder for institutions to be wary of punishing speech for merely the anticipation of a disruption. That being said, the Ct. is also clear that had the students utilized the school's computing resources to engage in these activities, it may have had a stronger case for restricting the speech. Finally, the Ct. is quick to note that had the speech been of the threatening nature–and the threat deemed to be credible–the institution's actions would've been viewed in a much different light.


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Policy Pitfalls:

1. “Pure Speech” vs. Conduct2. Behavior descriptions3. Using “intent” or “purpose”4. Failure to create context “severe and

pervasive/persistent”5. Impact of harassment: “sufficient to

limit or deny an individuals access to their education or participation in college activities or benefits”


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“Pure Speech” vs. Conduct

Critical: Creating a clear distinction between “pure speech” and conduct.

Pure speech or expression (visual or verbal) generally cannot create a hostile environment unless the elements established in Davis are met.


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Critical terms

Overbroad Vague AmbiguousUse of overbroad, vague or ambiguous

terms creates a “chilling effect” on student speech because they are unclear about what type of comments or expression may lead to discipline.


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Using “intent” or “purpose”

Use of the terms “intent” or “purpose” in describing prohibited activity subjects the student to potential discipline -- whether or not their motives had the intended effect, or any effect


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Creating Context

Title VII standard for hostile environment is less stringent than the standard established by the Court in Davis

Title VII says severe or pervasive, Davis says severe and pervasive and objectively offensive


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Standard for ImpactIn order to be

actionableUnder Title VII: must alter the conditions

of one’s employment and create an abusive work environment

Under Davis: must so undermine and detract from the victim’s educational experience that the victim/student is effectively denied equal access to an institution’s resources & opportunities


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Another Look at Proposed NMU Policy:

Sexual harassment is reprehensible and subverts the educational mission of the University. All forms of sexual harassment of students by faculty, staff or visitors or sexual harassment by students is prohibited at NMU.

-- cont. --


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What Needs To Change?

Sexual harassment is defined as any conduct, of a sexual nature, whether expressive, visual or physical, when:

Such conduct has the purpose, or effect ,of interfering with an individual’s work, educational performance or status;

Such conduct has the purpose, or effect, of creating an intimidating, hostile, or offensive environment

-- cont.--


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In general: does this work?

Sexual harassment can include any unwelcome verbal, written, visual or physical conduct which offends, denigrates or belittles an individual because of a sexual or gender based characteristic.

-- cont.--


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Specifically: Anything wrong with this

language?Such conduct includes, but is not limited

to: unsolicited derogatory or patronizing remarks, jokes, demeaning or dismissive comments or behavior, slurs, mimicking, name calling, graffiti, innuendos, gestures, physical contact, stalking, threatening, bullying, or the display or circulation of written material or pictures.


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Guidelines For Policy Development

Failure to understand the critical distinction between protected expression and actionable harassment may result in inclusion of vague, overbroad or ambiguous language subject to challenge.

Policies that regulate expression as well as conduct must comply with First Amendment limitations.


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Guidelines (cont.)

Review your policy for “expression” and conduct. Analyze your policy for “trigger words” like degrade, disgrace, demean, insult, embarrass

Ensure that your policy clearly articulates notice of what is actually prohibited and does not leave terms open to interpretation

Forms of sexual misconduct -- such as sexual assault -- should be addressed separately from sexual harassment


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Guidelines (cont.)

Do not create policies that allow for viewpoint based punishment or restrictions. Vaguely worded policies provides wide administrative discretion regarding which expression to punish

Create clear distinctions in your policy of expression related conduct from behavior related conduct, for example: prohibiting “degrading” remarks may be challenged if the severe & pervasive context isn’t applied, but prohibiting “threatening behavior”, directed at an individual would be a valid prohibition


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Thank you!

Questions?

For more information, visit: www.atixa.org

Or send questions to:[email protected]

http://www.atixa.org/

mailto:[email protected]

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SEXUAL HARASSMENT & THE FIRST AMENDMENT presented by Saundra K. Schuster, J.D. .

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