From:   Eugene Volokh

To:       Academic Freedom Committee

Date:    March 31, 2003

Re:       “Proposed changes to the University’s sexual harassment policy and procedures”

 

Dear Colleagues:

 

The University sexual harassment policy that we received is an unconstitutional speech code.  It threatens to punish students and teachers for speech that is constitutionally protected; and its vagueness risks deterring still more speech, even some that the policy’s drafters may not have intended to suppress.  The Dec. 11, 2002 memo claims to offer a “Clarification of conduct that constitutes sexual harassment,” but the examples (which the policy stresses are “illustrations only and neither exhaustive nor exclusive” and other details clarify only that the policy does indeed violate the First Amendment.

Teachers and students should be polite and respectful to each other and to their peers.  But we don’t need a speech code to accomplish this.  I’ve heard no evidence that there’s a serious problem with “severe or pervasive” offensive speech in classrooms, student newspapers, public debates, and the like; and if occasional incidents do happen, moral suasion and publicity—counterspeech instead of speech suppression—are the better solution.  They are certainly the only constitutionally permissible solution.

We on the Academic Freedom Committee should ask the Administration to instead revise the policy to make clear that speech may not be punished (unless it falls into well-established existing exceptions, such as threats).  The other parts of the policy, which deal with physical conduct or sexual extortion rather than speech, should remain in place.  But the speech restrictions must be removed.

 

A.  The Policy Restricts Speech That’s Protected by the First Amendment and by Academic Freedom Principles

 

1.  The policy restricts speech.  The policy prohibits, among other things, “verbal . . . conduct of a sexual nature” (p. 2).  What exactly does this mean?  Well, the policy gives some examples on p. 3: certain kinds of “sexually explicit statements [and] questions,” “sexually explicit . . . jokes [and] anecdotes,” “display of graphic material (e.g., sexually explicit pin-ups),” and “inappropriate targeted communications, such as letters, telephone calls, or electronic mail.”  And these are just “illustrations only and neither exhaustive nor exclusive”—other speech may be covered too.  But in any case, it’s clear that this is a speech code, just like the ones struck down in the cases described in Part C below.

The policy covers speech only when it “creates an intimidating, hostile, or offensive University environment” (p. 2)—a condition that the policy tells us happens when the conduct “is severe or pervasive” (p. 2) enough.[1]  But the policy nowhere defines what constitutes “hostile,” “offensive,” “severe,” or “pervasive.”  Which jokes are “severe” enough that they’re punishable by themselves?  How many “statements”—in student newspaper articles, in the classroom, or in public debates—does it take for the offensive speech to be “pervasive” enough to create an “offensive University environment”?  No-one can tell.

2.  And this vagueness makes the policy especially perilous.  As Justice Brennan wrote in his majority opinion in Keyishian v. Board of Regents, “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms, . . . [f]or standards of permissible statutory vagueness are strict in the area of free expression. . . .  Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. . . .  When one must guess what conduct or utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone . . . .’  For ‘[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions.’  The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.”[2]

Keyishian involved restrictions on speech by university professors, but the same is surely true for speech by university students, as courts have recognized when striking down campus speech codes.[3]  And the vagueness of the rule is especially troubling because the very filing of a complaint against a speaker can dramatically interfere with his education, and deter him (and his friends) from ever saying this sort of thing again.  Even if a student speaker is ultimately exonerated—after weeks or months of uncertainty—because the university administration concludes that his speech wasn’t “severe” or “pervasive” enough in this case, would he be willing to speak freely in the future?  Would others who hear of the incident be willing to take the risk?  To quote again Justice Brennan, writing for the Court in a different case, “If there is an internal tension between proscription and protection in the statute [here, in the policy], we cannot assume that, in its subsequent en­forcement, am­bi­guities will be resolved in favor of adequate pro­tection of First Amend­ment rights.”[4]

3.  The policy’s vagueness makes it impossible to precisely predict what it will cover.  But the policy’s wording is potentially quite broad, and similarly worded policies at other campuses have triggered “harassment” complaints based on a wide range of speech.

a.  For instance, the policy may punish articles in student newspapers that contain “comments of a sexual nature” (e.g., “men think with their dicks”), sexually themed “jokes[] or anecdotes,” or sexually “graphic materials” such as suggestive cartoons, so long as some university body finds that they are “severe” enough—or aren’t “severe” but are “pervasive” enough—to create an “offensive University environment.”  According to p. 3, comments “directed at members of one sex” (such as jokes or political statements about men or women) “may be sexual harassment if unwelcome and sufficiently severe or pervasive to create an intimidating, hostile or abusive environment.”

Also, “[t]he prohibition on sexual harassment applies . . . to harassment between peers,” for instance when student columnists write material that is seen as creating an “offensive University environment” for other students.  And even if the policy is limited to “conduct not legitimately related to the subject matter of a course or curriculum” (p. 2; see p. 8 of this memo for more on this), neither the Daily Bruin nor the other newspapers are parts of a course or curriculum. 

There are many examples of speech in student newspapers triggering complaints under harassment policies.  Several “sexual harassment” complaints were in fact filed against a University of Oklahoma professor who published a sexually offensive political letter in the student paper, and the complaints triggered a University investigation.[5]  The professor was cleared a month later—but if you were a student at a university where such charges could be filed under standards filled with vague phrases such as “offensive University environment,” “severe,” and “pervasive,” would you feel safe speaking your mind in controversial ways?  Likewise, student editors who published cartoons that expressed controversial views on racial matters have been brought up on “racial harassment” charges by university administrators.[6]  Cartoons that express controversial views on sexual matters may equally lead to “sexual harassment” charges.

An antifeminist parody circulated by some Harvard Law School students similarly led to accusations of “sexual harassment” made by two professors, who urged the school to take disciplinary action against the students on those grounds.[7]  Harvard has fortunately rejected proposals for a speech code, but when a speech code is implemented, such charges could indeed be filed.  And alternative newspapers may that deal with sexual themes in a way that some see as vulgar have been described as “hav[ing] the potential to create a hostile environment” so they “could . . become the basis of sexual harassment claims.”[8]

Which sorts of newspaper articles are “severe” enough to be suppressed by this policy?  When would a sequence of offensive articles be “pervasive” enough to create an “offensive University environment”?  No-one can tell for sure, since the terms “severe,” “pervasive,” and even “verbal conduct of a sexual nature” are so ill-defined.  But as I’ve mentioned above, this vagueness is itself a serious flaw of the policy.

b.  Just as the policy may punish speech in newspapers, so it may punish student speech at demonstrations, in lunchtime discussions, on T-shirts, and so on.  Nothing in the policy prevents such speech from being punished, since it too may involve “verbal . . . conduct of a sexual nature” (a category that involves jokes, “graphic material,” and an unspecified range of other things related to sex) that may be seen as creating an “offensive” environment, and may be unrelated to a particular course or curriculum.  And again, “harassment” charges have been brought at other schools based on, among other things, anti-gay leaflets,[9] offensive mockery of a “Take Back the Night” march,[10] allegedly racist T-shirts,[11] the sale of T-shirts with the motto “Why Beer is Better Than Women,”[12] and so on.

c.  Likewise, the policy may be applied to display or publication of art containing sexual themes, so long as it’s not unrelated to a particular course or curriculum.  The policy specifically takes the view that “display of graphic material (e.g., sexually explicit pin-ups) in the . . . workplace, or targeted at a particular person or group” may be punishable, on the commonly adopted theory that sexually suggestive material depicting one or another sex is inherently “targeted” at that sex.  People who object to sexually themed art have repeatedly used “harassment” policies to file complaints about art, and these complaints have often led to the art being taken down.[13]

The policy, of course, is by no means limited to hard-core pornography, nor can it be, given how hard it is for the legal system to draw the line between “pornography” and “legitimate” art.[14]  “Sexually explicit pin-ups” are given as just one example of potentially prohibited speech, and in a list that is specifically said is “neither exhaustive nor exclusive” (p. 2).  Are the female nudes in the Sculpture Garden covered by the definition?  I think the best we can say is “the rule is so vague that it’s impossible to tell.”  At the very least, any students or teachers who wants to use material with any sexual content as part of a political or artistic statement will have to operate at their peril, not knowing whether someone might say that the material is “severe” enough (or, if it’s posted several times, “pervasive” enough) to create an “offensive University environment.”

d.  Likewise, the policy will affect what students and professors can say in class.  As I discuss below in Part D, I fully agree that students and professors should act professionally and politely, in class and outside it.  This professionalism, though, is traditionally enforced not through punishment or formal proceedings, but through social norms, through professors informally guiding classroom behavior, and through colleagues and administrators informally advising professors in the rare situations where a professor’s statements may get out of line.  The harassment policy would instead punish classroom speech through the threat of suspension, or worse.

Harassment policies have already led to the punishment of faculty in other schools based on supposedly “sexually offensive” comments.  One religion professor was punished because he “recited a story from the Talmud . . . about a man who falls off a roof, lands on a woman and accidentally has intercourse with her.”  “A woman in the class was offended . . . because she believed the story justified brutality toward women,” and filed a complaint, which led to a formal reprimand.  The professor, the school said, “‘had engaged in verbal conduct of a sexual nature’ that had the effect of ‘creating an intimidating, hostile or offensive environment.’”[15]

An English professor was likewise disciplined for class discussions about, among other things, pornography, again under a sexual harassment policy.[16]  Another English professor was disciplined for using sexually related examples in class; this was likewise done under a sexual harassment policy.[17]  Ultimately, after many years of litigation, both of the last two disciplinary actions were set aside in court on the grounds that the sexual harassment policy was unconstitutionally vague.

I probably wouldn’t say some of these things in my classroom, though sometimes I do use mildly sexually suggestive humor, especially when I teach about obscenity law.  But it’s wrong for the university to punish such speech (either professor speech or student speech) using vague language such as “offensive University environment” or “not legitimately related to the subject matter of a course or curriculum”—who can know up front what someone will later find to be “legitimately related”?  I think it’s much better to risk occasional situations where students are offended by sexual references than to set up vague, broad policies that threaten administrative sanctions based on student and teacher speech.

e.  Also, as I’ve implicitly suggested above, though the policy is limited to sexual harassment, presumably the university would try to treat speech that’s offensive based on race, religion, national origin, or sexual orientation the same way.  If that’s so, then not just allegedly sexually offensive but also allegedly religiously offensive, racially offensive, and so on material would also be subject to potential suppression.

f.  Finally, consider the item in p. 3 that refers to “inappropriate targeted communications, such as letters, telephone calls, or electronic mail.”  I actually do think that the recipient of a one-to-one communication should be allowed to tell people “Stop sending me stuff,” and have that command stick.  But a speech code that prohibits “inappropriate” speech is impermissibly vague; and this item is emblematic of the vagueness of the rest of the proposal.

I realize that the drafters of the policy might not have intended it to potentially cover all the examples I give above—though that’s hard to tell, since, as the citations I give show, this sort of speech has indeed led to “harassment” complaints under other speech codes.  But we can only analyze the policy as it is written, and on its face it does potentially cover these examples.  If the drafters don’t intend it to cover student newspapers, student political speech, overheard conversations in the lunchroom, art, and so on, they should change the policy to make that clear. 

 

B.  No Provisions in the Policy Adequately Protect Against These Results

 

No provisions in the policy adequately protect against these results.

1.  As I mentioned, the seeming protection for material that’s “legitimately related to the subject matter of a course or curriculum” is quite limited.  First, on its face it only applies to speech that’s related to a particular “course or curriculum”—much debate and commentary on campus isn’t so limited.[18]  Second, who says what’s “legitimately related”?  As a student, would you have felt comfortable speaking on controversial topics if you knew that you could be punished—perhaps even suspended or expelled—if your speech was found not to be “legitimately” related to the subject matter of a course?

Note, by the way, that it’s not exactly clear that the policy does indeed exclude speech that’s “legitimately related to the subject matter of a course or curriculum.”  That phrase is not part of the definition on p. 2, but only an introduction to the “illustrations of conduct” that “may be considered sexual harassment,” which are specifically said to be “illustrations only and neither exhaustive or exclusive.”  If the policy drafters really do want to categorically protect speech that’s “legitimately related to the subject matter of a course or curriculum,” they should incorporate that into the definition itself (though, as I argue above, even with that proviso the policy would be too broad and vague).

2.  The rule that speech can only be punished if it’s “severe or pervasive” enough to create an “offensive University environment” isn’t much of a protection.  “Severe or pervasive” is a term of art; it usually excludes isolated statements (unless they’re extremely “severe”),[19] but it covers speech that is seen or heard several times in the span of several months.[20]  A newspaper columnist that every couple of weeks engages in sexual humor that some find offensive, and that’s aimed at men or aimed at women, can thus be punished for the contents of his column.  Likewise for a student group that uses sexually themed jokes or graphics in its political or artistic messages.

3.  The first two examples on p. 3 seem to be limited to “sexually explicit statements, questions, jokes, or anecdotes” and “display of graphic material” “in the classroom, workplace, or targeted at a particular person or group.”  But this is no real limitation.  First, many jokes are targeted at men or at women, or to subsets of men or women—fraternity or sorority students, “dumb blondes,” and so on—and are sometimes derogatory towards those groups; likewise as to sexually explicit statements about one or another sex (e.g., the “men think with their dicks” examples).  The list in the policy would cover such jokes and statements.

Second, many areas on the university are someone’s “workplace.”  Professors and TAs work on campus, and walk through the halls of the university—statements on bulletin boards are thus in the “workplace.”  Likewise for potentially offensive political statements made by students in computer labs where computer lab employees might overhear them, speech by student TAs or faculty members talking to each other in the lunch room, and so on.

Third, the list on p. 3 is specifically labeled as “illustrations only and neither exhaustive nor exclusive”—and nothing in the definition or in the rest of the policy limits the policy’s scope to material “in the classroom, workplace, or targeted at a particular person or group.”  The policy itself applies to speech in the classroom and outside it, to speech in the workplace and outside it, and to speech whether or not it’s targeted at a particular person or group.

4.  On p. 4, the policy acknowledges the importance of freedom of speech and academic freedom—but without in any way constraining the policy’s breadth, or alleviating its vagueness.  Nothing in that subsection prevents the punishment of political statements, humor, or art, in the classroom or out of it.  Nothing defines the vague terms “severe or pervasive” and “offensive University environment.”  Nothing assures student newspapers that their speech, even if offensive to some, will remain protected.  In fact, by using the language of “balanc[ing]” (“The University must balance these two significant interests, the right of academic freedom and the right to be free from sexual harassment”), which is traditionally used as a justification for speech restriction, the policy reaffirms that it is restricting speech and academic freedom in the interest of preventing an “offensive University environment.”

 

C.  The Policy Is Unconstitutional

 

Even speech that is hostile, offensive, or sexist is constitutionally protected, and should be protected by broader academic freedom principles even if the First Amendment didn’t apply.  And this isn’t just my view:  To my knowledge, every court decision that has measured a university speech code against the First Amendment has struck the speech code down.

Dambrot v. Central Michigan University involved a “hostile or offensive environment” speech code like this one; the court concluded that the term “offensive” was unconstitutionally vague, and that the speech code was generally unconstitutionally overbroad.[21]  UWM Post v. Board of Regents involved the same sort of speech code; the court concluded that it was unconstitutionally overbroad, even if limited (as our code is not) to “epithets, insults, and personally abusive comments.”[22]  Doe v. University of Michigan involved a policy that barred various speech when it “create[d] an intimidating, hostile, or demeaning environment for educational pursuits”; the court struck it down because it was unconstitutionally vague and overbroad.[23]  Iota Xi v. George Mason University likewise held that the university may not constitutionally punish student speech on the grounds that it “creates a hostile and distracting learning environment” based on race.[24]

Likewise, Corry v. Leland Stanford Junior University struck down a “discriminatory harassment” speech code that was actually in many ways narrower than ours; the court held that the code would have violated the First Amendment if it were implemented by a public institution, and thus violated a California statute (the so-called Leonard Law) that applies First Amendment standards to private universities.[25]  Cohen v. San Ber­nar­dino Valley College held a “hostile or offensive environment” speech code unconstitutionally vague as applied, even though the case involved in-class speech by an instructor, which is less constitutionally protected than speech outside class speech by students;[26] Silva v. University of New Hampshire did the same.[27]

 

 

D.  The Policy Is Unnecessary

 

Finally, the policy is unnecessary.  It’s not required by the law:  The law clearly can’t require what the Constitution itself forbids; and the Supreme Court, when it recognized that Title IX allows sexual harassment claims in some educational contexts, specifically acknowledged that “A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy, and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.”[28]

Likewise, the four-Justice dissent in that case specifically pointed out that “A university’s power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment.  The difficulties associated with speech codes simply underscore the limited nature of a university’s control over student behavior that may be viewed as sexual harassment.”[29]  The majority nowhere disagreed with this statement, and the quote in the preceding paragraph suggests that they actually agreed with the dissent, but took the view that their interpretation of Title IX did not require universities to impose speech codes.

And this of course makes sense, for three reasons.

First, as one of the cases that struck down a campus speech code held, “even if the legal duties set forth in [sexual harassment law] applied to this case, they would not make the [speech code] constitutional.  Since [the statute on which sexual harassment law is built] is only a statute, it cannot supersede the requirements of the First Amendment.”[30]  This is basic constitutional law:  The requirements of the Constitution trump contrary statutes—and certainly trump contrary university policies—and aren’t to be merely “balanced” against them.

Second, there’s no evidence that there’s a serious problem with “severe or pervasive” sexually themed graphics or sexual jokes or anecdotes in the classroom and in campus public discourse.  Do UCLA faculty members routinely say sexual things in class that create “hostile University environments” for their students?  I highly doubt it, both because most teachers have at least minimal good manners, and because they realize that if they act badly, they risk public embarrassment when their colleagues or administrators (or student newspapers) learn of the misbehavior.

Likewise, do students routinely say offensive things in class?  If they ever did this in my class, I’m sure that my authority as the teacher will be more than adequate to make sure that they stop, without any need to threaten administrative sanctions under vague, broad speech codes.

Do students routinely use sexual insults or other highly improper speech in newspapers or public debates?  I think they have a legal right to do this, but I agree that it’s wrong for them to do it, and that we should condemn them if they do.  But such offensive speech is very rare, precisely because of the risk of condemnation.

Third, and relatedly, this is the classic situation where the proper remedy for bad speech isn’t suppression—it’s counterspeech.  While the University has good reason to try to prevent some sexually offensive speech, “it seems . . . apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express. . . .  [A] public university has many constitutionally permissible means to protect female and minority students[, but] ‘the manner of [its action] cannot consist of selective limitations on speech.’”[31]

If someone does start insulting people because of their sex, or putting up highly inappropriate sexually themed material, other students, faculty members, and administrators can and should speak up themselves to protest this misbehavior.  Then members of the university community can decide for themselves who’s in the right: the original supposedly offensive speaker or those who condemn his speech.  The “University environment” that we need is this very sort of marketplace of ideas—not a system where allegedly offensive speech is suppressed by the threat of (often secret) administrative punishment.

 

E.  Conclusion

 

We already have the speech code that we need, and that is the First Amendment.  Under the First Amendment, state-run universities do not have the power to restrict “verbal conduct” on the grounds that it’s “hostile” or “offensive,” whether or not it’s “severe” or “pervasive” enough to create an “offensive University environment.”

The University should reaffirm this basic principle, by revising the sexual harassment policy to make clear that “verbal conduct”—including “jokes,” “anecdotes,” and “graphic material”—cannot be punished unless it falls within one of the narrow free speech exceptions that the Supreme Court has recognized (such as threats, defamation, obscenity, or fighting words).  The University should certainly not implement a supposed “clarification” that only reaffirms its attempt to suppress student and faculty speech.



[1] The policy requires the conduct to be “sufficiently severe or pervasive to alter the conditions of employment, or deprive an individual of the educational opportunities or benefits provided”; the part starting with “to alter,” however, appears to be a legal term of art that simply refers back to the “intimidating, hostile, or offensive University environment.”  The quality of the “environment” is seen as one of the “conditions of employment,” and one of the “educational . . . benefits.”

[2] 385 U.S. 589, 603-604 (1967); see also Silva v. University of New Hampshire, 888 F. Supp. 293, 312 (D.N.H. 1994) (quoting this very language in striking down a university sexual harassment policy on vagueness grounds).

[3] See the cases cited in Part C, which struck down campus “harassment” policies on vagueness grounds.

[4] NAACP v. Button, 371 U.S. 415, 438 (1963).

[5] See Ed Godfrey, Professor’s Letter Draws Ire, Daily Oklahoman, Feb. 26, 2000:

An official with a student organization has filed a sexual harassment complaint against a University of Oklahoma professor who wrote a letter to the campus newspaper comparing a vagina to a handgun.

Advocates for Sexual Assault Awareness in Norman issued a news release Friday condemning David Deming’s comments and equated them to sexual harassment. . . .

Becky Hebert said she filed a sexual harassment complaint against Deming with OU’s Equal Opportunity and Affirmative Action office. . . .

Deming’s letter was published in Monday’s edition of The Oklahoma Daily.  He was responding to an article published Feb. 18 in the newspaper and written by Yale Daily News columnist Joni Kletter.

Advocating stricter gun control laws, Kletter wrote “easy access to a handgun allows everyone in this country, including criminals, youth and the mentally disabled, to quickly and easily kill as many random people as they want.”

Deming . . . said he was “very insulted” by the column. He responded by writing that “Kletter’s easy access to a vagina enables her to quickly and easily have sex with as many random people as she wants.”

He also wrote that Kletter’s “possession of an unregistered vagina also equips her to work as a prostitute and spread venereal diseases.”

Deming said he was attempting to show that “my gun no more makes me a killer than her vagina makes her an immoral person.” . . .

Hebert said she is aware of at least six written complaints against Deming.

“Having my vagina equated with a handgun is degrading, and for this to go unaddressed by the university is demoralizing,” she said. . . .

Hebert wants the university to reprimand Deming and require him to receive sensitivity training on women’s issues.  She thinks Deming should be fired if he has made similar comments in the classroom. . . .

I disagree with Deming’s way of expressing himself, but I think it’s outrageous for people to try to suppress such constitutionally protected expression of opinion under the theory that it constitutes “harassment.”

[6] See, e.g., David G. Savage, Forbidden Words on Campus, L.A. Times, Feb. 12, 1991, at A1:

In December, the editors of the Connector, the student newspaper at the state-run University of Lowell in Massachusetts, published a cartoon mocking what they considered overzealous protesters—both those who favor animal rights and those who favor the death penalty.

One side showed a drawing of an animal rights activist, with the caption:  “Some of my best friends are laboratory rats.”  On the other was a big-bellied death-penalty advocate.  “None of his best friends are young, black males,” said  the legend underneath.

But black students didn’t find the cartoon funny and neither did university officials.  They promptly charged the student editors with violating the student code by creating a “hostile environment” on campus and other “civil rights” abuses.  Eventually, the editors found themselves facing university sanctions that included six months’ probation and 30 hours of community service and removal from the newspaper’s staff.

[7] See Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1802 n.54 (1992).

[8] Richard Winton & Eric Malnic, Judge Refuses to Bar Suspension of Newsletter Author, L.A. Times, Apr. 17, 1997, at B3 (quoting a tentative decision of a judge upholding a private university’s suspension of a student writer).

[9] See Professors Back Student on Free Speech, N.Y. Times, Sept. 28, 1986, at A41.  The student was put on probation for two years, but the punishment was rescinded four months later on free speech grounds.

[10] See Lindsay Bosslett, Council Looks Into Harassment Charges, Daily Collegian, Apr. 26, 2001, http://www.collegian.psu.edu/archive/2001/04/04-26-01tdc/04-26-01dnews-5.asp (discussing sexual harassment allegations against a fraternity that supposedly responded by chanting “No means yes, now take off your dress!” to “Take Back the Night” marchers who were chanting “No means no, yes means yes, wherever we go, however we dress!”).

[11] See Ralph Frammolino, Free Speech Suit Ends Ban on UC Riverside Fraternity, L.A. Times, Nov. 11, 1993, at A1 (discussing UC Riverside’s attempt to punish students for wearing allegedly racist T-shirts; “[t]he T-shirts in question depicted a beach scene with two Mexican caricatures, one in sombrero and serape, holding what appear to be beer bottles.  The picture is surrounded by the words: ‘It doesn’t matter where you come from as long as you know where you are going.’ . . .  The fraternity gave the T-shirt to members and potential pledges for a ‘south of the border’ party.”).  “To settle the suit, UC Riverside officials agreed . . . to rescind the punishment—and, in a highly unusual step, have the administrators in charge take legal training about the safeguards of the 1st Amendment.”  Id.

[12] See School Bans Smut-Shirts, Up to a Point, Chi. Trib., June 30, 1989, at C12.  The student was put on probation not under some general ban on sale of T-shirts, but specifically for selling T-shirts with statements that some people found to be offensive.  The school later banned—via a “Freedom of Speech Versus Freedom Harassment Policy”—the wearing of such T-shirts in dormitory common areas and classrooms; the ban was later rescinded because of free speech complaints.  Tufts University Suspends Speech Policy, UPI, Oct. 4, 1989.

[13] See, e.g., Lawson v. Lower Columbia College, 1999 WL 294626 (Wash. App.), describing a sexual harassment complaint brought by a college professor based partly on a “poster [that] asked, ‘Do you have a penis?’ and advocated the use of condoms,” the posting of a pro-pornography article, the display of “prints of western artwork [including a Picasso and a Klimt] on the walls of the department office . . . depict[ing] semi-nude women,” and a “poster for an upcoming gay and lesbian event in Portland[, which] depicted a nude male and female[; t]he male’s genital area was covered but the female’s breasts and pubic area were exposed.”  The court concluded that such speech ought not be punishable in a university:  “The western artwork is just that—artwork that a reasonable person would expect to find in colleges and other academic environments, not to mention art museums and other public places.  The poster for the gay and lesbian event, the censorship article, and the safe sex poster are of similar ilk items that a reasonable person would expect to find in colleges, libraries, and other environments devoted to the free exchange of information.  Such displays are expected and tolerated by people working in such places, and they will not support the claim made here.”  See also Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21, and Nat Hentoff, Trivializing Sexual Harassment, Wash. Post, Jan. 11, 1992, at A19, describing a sexual harassment complaint brought by a professor who objected to a copy of Goya’s Naked Maja hanging in a classroom.

Likewise, the 1994 Artistic Freedom Under Attack, a People for the American Way report, lists eight other instances where employees claimed that public art involving nudity constituted workplace harassment.  In each case the work was taken down, though in two instances it was later reinstalled.  2 People for the American Way, Artistic Freedom Under Attack 29, 50, 92, 156, 214, 221 (1994); see also id. at 111, 208 (describing two more incidents, in which the complaints didn’t specifically refer to harassment but city officials nonetheless concluded that the work might be harassing).  In another case in Dayton, an artist’s adaptation of Titian’s Venus painting was removed because “employees felt they were being sexually harassed by the painting.”  Lynn Hulsey, Artist Removes Vandalized Nude, Dayton Daily News, at 3B.  In Los Angeles, county officials objected that a sculpture of a naked man displayed in the County Hall of Justice and Records “might interfere with programs on sexual harassment,” and asked the county Arts Council to cover it.  L.A. Times, Oct. 31, 1986, § 1, at 2.  In Seattle, critics condemned as “a form of sexual harassment” a painting in a city hill gallery that depicts a woman who symbolizes Mother Earth giving birth to a child poisoned by chemicals.  Art of Birth Raises Hackles, Vancouver Sun, May 25, 1992 

At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5” x 7” photograph of his wife in a bikini.  The employer ordered that the photo be removed.  Nat Hentoff, A ‘Pinup’ of His Wife, Wash. Post, June 5, 1993, at A21.

[14] Fortunately, we at UCLA needn’t worry about controversies about “snow penises.”  See Cathy Young, Puppetry of the Snow Sculpture, Boston Globe, Mar. 10, 2003, at A11 (describing student claims that a 9-foot tall snow penis was tantamount to “snow sculpture of a Nazi swastika” because “it clearly serves as a powerful symbol of sexual dominance and gendered violence.”).

[15] Dirk Johnson, A Sexual Harassment Case to Test Academic Freedom, N.Y. Times, May 11, 1994, at D23.

[16] Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996).

[17] Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994).  The student complaints stated:

In Don Silva’s Technical Writing class we were discussing focusing on our target for our report.  When Mr. Silva started talking in a sexual manner which I thought was very inappropriated [sic] and also very affending [sic].  He said to the class that he would put it in sexual terms so we could understand it.  So he said it’s like going in and out, side to side, and loosening up so you could find the best target area. I really think that was uncalled for, especially from a professor.  He could have used other explanations, and if he couldn’t then he was better off by saying nothing at all. . . .

During class we were discussion [sic] our technical reports when Don Silva made an analogy of a belly dancer, he made a vulgar, inappropriate description of a “bowl of jello and a vibrator”, to describe the belly dancer.

Again discussing our technical reports, Don Silva was trying to explain another subject, and to do so he used the analogy of intercourse, “Find the target, loosen up, back and forth, side to side.” These are just two of many such occurrances [sic].

I felt degraded in his class on Wednesday, 26 Feb, and disgusted on 24 Feb. I had questions about our assignment on 26 Feb, but due to his use of sex as a “focus”, I walked away rather than asked [sic] him to clarify again. I didn’t want any more strange explainations [sic].

As a non-traditional student and as a parent I am appalled at the statements made by Don Silva in the Technical Writing class on Wednesday 2/26/92. I feel that as a professor of English he could have illustrated the definition of “analysis” in a much more appropriate manner.  He insinuated that every student present had first-hand knowledge of his illustration, and furthermore, that it was the only one we would understand. . . .

[18] I wish “curriculum” could be read broadly, to cover not just speech that touches on a specific class or a specific set of classes that the speaker is involved in, but that is in any way related to the subject matter of any class in the university, whether or not the student is taking it.  But if that were so, then what would be left of the policy?  Virtually any joke or pin-up can be said to be somehow related to the subject matter of some class taught at the university, such a class on First Amendment law, which covers profanity, humor, and pornography.  Obviously the policy is meant to be more meaningful than that, and cover only speech that is somehow tied to the class in which, or about which, the speech is made.

[19] See p. 2 of the policy:  “An isolated incident or remark of a sexual nature generally does not constitute harassment unless it is unusually severe . . . .  [But] conduct may seem relatively inoffensive by itself, but become harassing because it is part of a larger pattern of unwanted behavior.”

[20] See, e.g., Schwapp v. Town of Avon, 118 F.3d 106 (2nd Cir. 1997) (finding, in the analogous context of racial harassment, that “ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure,” of which only four occurred in his presence, were enough to create a potential harassment case); Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm’n No. 9401006004 (Nov. 28, 1995) (finding sexual harassment based on sexually themed jokes that were distributed every couple of weeks).

[21] 55 F.3d 1177, 1182, 1184 (6th Cir. 1995).

[22] 774 F. Supp. 1163, 1177 (E.D. Wis. 1991).

[23] 721 F. Supp. 852 (E.D. Mich. 1989).

[24] 993 F.2d 386 (4th Cir. 1993).

[25] Case no. 740309 (Cal. Super. Ct. Feb. 27, 1995).

[26] 92 F.3d 968 (9th Cir. 1996).

[27] 888 F. Supp. 293 (D.N.H. 1994).

[28] Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649 (1999).

[29] Id. at 667 (Kennedy, J., dissenting).

[30] UWM Post, 774 F. Supp. at 1176.

[31] Iota Xi, 993 F.2d at 383 (using this as part of the explanation for holding that a university couldn’t constitutionally punish speech under a “harassment” rationale).