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What is harassment?

On our nation’s college campuses, sexual harassment is considered to be a form of sex discrimination that is prohibited by Title IX of the Education Amendments of 1972, a federal law that prohibits discrimination on the basis of sex in educational programs that receive federal funding. Because almost all colleges and universities receive funds through student loan programs or for research grants, virtually every college and university nationwide is required to follow it.

That means that colleges and universities have both a moral and a legal duty to effectively respond to all accusations of sexual harassment that, if true, would fit the legal definition of sexual harassment. As with many other crimes or offenses, not everything that people might colloquially refer to as “sexual harassment” actually fits the legal definition of the term, and much of it actually is expressive conduct or free speech protected by the Constitution. So when colleges and universities respond to sexual harassment, they must do it without trampling on student and faculty members’ expressive rights.

The Supreme Court of the United States has provided a clear standard for student-on-student harassment that simultaneously prohibits harassment and protects speech. In Davis v. Monroe County Board of Education (1999), the Court determined that sexual harassment in the educational context is targeted, discriminatory conduct

that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.

By definition, this includes only extreme and usually repetitive behavior — behavior so serious that it would prevent a reasonable student from receiving his or her education. (For example, in the Davis case itself, the conduct the Court found to be actionable harassment was a months-long pattern of conduct, including repeated attempts to touch the victim’s breasts and genitals and repeated sexually explicit comments directed at and about the victim.) Put simply, to be legally punishable as harassment, students or faculty must do far more than simply be rude or offensive. 

Title IX and sexual assault cases on college campuses

The following selection is excerpted from ����ֱ��’s Guide to Due Process and Campus Justice.

All educational institutions that receive federal funding — virtually all colleges and universities, both public and private — have special legal obligations when dealing with complaints of sexual harassment and sexual assault. 

Title IX of the Education Amendments of 1972 states: 

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. 

Federal regulations interpreting Title IX mandate that educational institutions receiving federal funding must establish “prompt and equitable” grievance procedures to hear and resolve complaints of sex discrimination. In the years since Title IX’s passage, both courts and the Department of Education’s Office for Civil Rights (OCR), the federal agency responsible for enforcing Title IX and other federal anti-discrimination statutes, have interpreted “discrimination” to include sexual harassment and sexual assault. As a result, the Title IX regulatory requirement of “prompt and equitable” grievance procedures applies both to complaints about sexual discrimination by an institution and complaints against particular students, faculty, administrators, or staff for sexual harassment and sexual assault.

Under Title IX, colleges and universities must prohibit discriminatory harassment that creates a “hostile environment.” As decided by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999), hostile environment harassment for which a college may be held liable occurs in the educational setting when a student is subject to targeted, unwelcome conduct “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” If a college learns of hostile environment harassment, it must take action “reasonably calculated” to eliminate it and prevent its recurrence.

Title IX gives victims of sexual discrimination an interest in due process. If a student makes an allegation of sexual assault or harassment, his or her university must pursue the alleged perpetrator in a manner that is “prompt and equitable.” If the university does not do so, the student can file a complaint with OCR, which will review the university’s handling of the case. If OCR finds that there has been unfair treatment, it may take corrective action. Title IX and its implementing regulations empower OCR to begin proceedings to strip federal funding from a university — potentially a death blow for all but the wealthiest institutions — so administrators generally take compliance with Title IX very seriously.

Those interested in due process and procedural fairness on campus should check out ����ֱ��’s Model Code of Student Conduct — a comprehensive collection of disciplinary policies and procedures designed to protect civil liberties.

Title IX’s mandate of a “prompt and equitable” hearing in order for the victim to seek vindication should ensure — at least in theory — fair treatment for the accused as well. After all, an “equitable” procedure by definition must be a fair one. The requirement of fair procedures confers rights upon both parties in claims of sexual harassment or assault, and OCR has made clear that rights afforded to the complainant must also be afforded to the accused, and vice-versa. Of course, accused students must be presumed innocent until proven otherwise. Students and their advocates would do well to point this out in cases where they are accused of sexual misconduct. How could a process not fair to all parties in a case actually be “equitable”?

Due process at religious institutions

If you are considering attending a religious institution, you should review its code carefully to see if you are willing to be bound by it. Some religious institutions — seminaries, colleges, or universities that are associated with churches, synagogues, or mosques, for example — have strict rules governing student conduct. Private colleges are allowed to establish such rules, as long as their regulations do not violate anti-discrimination laws or other statutes.

Even then, some religiously required practices that may appear to be discriminatory — above all, in areas of sexuality — may be constitutionally protected as “the free exercise of religion.” For example, rules mandating the expulsion of sexually active students by sectarian institutions are lawful, as are rules dismissing students for lacking “Christian character.” In the case of , the Court of Appeals of New York (the state’s highest court) found no fault with the decision of St. John’s University, a Catholic institution, to dismiss a student couple who married in a civil but not in a religious ceremony.

FIRE's Guide to Due Process and Campus Justice

This ����ֱ�� Guide informs readers about the appropriate (and inappropriate) methods by which university administrators address issues of academic and non-academic misconduct.

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St. John’s has since changed its rule that “in conformity with the ideals of Christian . . . conduct, the University reserves the right to dismiss a student at any time on whatever grounds.” But such a regulation would still be lawful. This is because the First Amendment’s religious liberty clause, applied to the states by the Fourteenth Amendment, provides considerable autonomy to religious institutions. While not every religious practice enjoys constitutional protection (human sacrifice and the use of sacramental illegal drugs do not, for example), many practices involving adherence to religious doctrine and the freedom to associate with others of similar beliefs are protected.

Again: If you are considering attending a religious institution, you should review its code carefully to see if you are willing to be bound by it.

Those interested in due process and procedural fairness on campus should check out ����ֱ��’s Model Code of Student Conduct — a comprehensive collection of disciplinary policies and procedures designed to protect civil liberties. Its provisions set the gold standard for due process and students’ rights, which we encourage educational institutions to adopt. 

To learn more about your rights, explore ����ֱ��’s Guide to Due Process and Campus Justice.

Further Reading on Sexual Harassment

• Northwestern University Professor Laura Kipnis, “,” The Chronicle of Higher Education (May 29, 2015).

[A]ny Title IX charge that’s filed has to be investigated, which effectively empowers anyone on campus to individually decide, and expand, what Title IX covers. Anyone with a grudge, a political agenda, or a desire for attention can quite easily leverage the system. And there are a lot of grudges these days.

• Harvard Law School Professor Jeannie Suk Gersen, “,” The New Yorker (Sept. 8, 2017).

In the period since the Obama administration first brought sexual assault to the foreground of Title IX enforcement, the courts’ and the public’s views have developed to crystallize around the idea that Title IX protects the fair treatment of accusers and accused, women and men.

• Harvard Law School Professor Janet Halley, “,” WBUR (Nov. 14, 2014).

There are many other reasons for concern about the current moment of overreach. Chief among them: Women’s quest for sexual autonomy is undercut by protectionist images of our sexuality, mandatory reporter requirements, and the newly robust obligation of schools to pursue sexual harassment claims even when the alleged victims don’t want them to.

• “,” American Civil Liberties Union.

Preventing harassment does not require unnecessarily restricting free speech. In fact, harassment is less likely to occur in schools where ideas can be freely and respectfully exchanged.