Kara Sears
The misapplication of hostile harassment law in colleges and universities has resulted in the suppression of constitutionally protected speech. While colleges have an obligation to prevent and address sexual harassment and violence under Title IX, the law's scope is limited to discriminatory conduct on the basis of gender, race, colour, or national origin. The conflation of employment law with Title IX and Title VI has contributed to the misinterpretation of hostile environment law in educational settings. To address this issue, schools must establish clear policies, procedures, and designated coordinators to effectively handle incidents of sexual harassment and violence, ensuring the protection of students' rights and freedoms.
| Characteristics | Values |
|---|---|
| Colleges and universities misapplying hostile harassment law | To suppress and punish constitutionally protected speech |
| How do they justify their actions? | As being required under federal law, specifically Title IX and Title VI |
| What do these statutes focus on? | Discriminatory conduct on the basis of gender and race, color, or national origin, respectively |
| What is the case law under these statutes clear about? | An alleged hostile environment must be based on extreme patterns of harassing conduct rather than pure verbal expression |
| What is the problem with this? | Schools are acting contrary to the stated policy of the Department of Education's Office for Civil Rights (OCR) |
| What is another contributing factor to the misapplication of harassment law in higher education? | Conflation of the law under Title VII, which governs harassment in employment, with Title IX and Title VI law |
| What is the difference between Title VII and Title IX/VI? | The harassment standard for the workplace is legally distinct from the standard for harassment in education |
| What is Title IX? | A comprehensive federal civil rights law that covers all students and staff in any educational institution or program that receives federal funding |
| What does Title IX prohibit? | Sex-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping |
| What must schools do? | Make accommodations and interim measures available to students to address the effects of sexual harassment and violence |
| What are some examples of these measures? | Changing class schedules to avoid contact between students or providing campus escort services |
| What is the role of the Title IX coordinator? | To monitor compliance with the law, investigate and respond to incidents of sexual harassment and sexual violence, and be available to students, faculty, and staff |
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What You'll Learn
Misapplication of peer harassment law in colleges
The misapplication of peer harassment law in colleges and universities has resulted in the suppression of constitutionally protected student speech. This has occurred due to the conflation of employment harassment law under Title VII with student-on-student (or peer) harassment law under Title IX and Title VI.
For example, in DeJohn v. Temple University, the Third Circuit struck down the University's sexual harassment policy as being unconstitutionally vague and overbroad. The University's policy, which was based on Title VII standards, restricted student speech rights and failed to recognize the unique issues presented by peer harassment in an educational setting.
The misapplication of peer harassment law in colleges can have a detrimental impact on the free exchange of ideas, which is crucial to the educational mission of colleges and universities. It is important for these institutions to understand the distinct nature of peer harassment in an educational context and to develop policies that protect students from true harassment while also preserving their right to free speech.
To address this issue, colleges should refrain from relying solely on Title VII standards and instead develop harassment policies that are tailored to the specific context of peer interactions in an educational setting. This may include establishing clear definitions of prohibited conduct, implementing effective complaint procedures, and providing anti-harassment training that educates students about their rights and responsibilities.
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The role of the Third Circuit in hostile environment law
The Third Circuit Court of Appeals has played a significant role in shaping the law on hostile work environments, particularly regarding the legal standard for determining such claims. In the case of Castleberry v. STI Group, the Court clarified the standard for evaluating hostile work environment claims brought under Section 1981 of the Civil Rights Act of 1866.
The Court held that the correct standard is "severe or pervasive" discrimination, rather than "pervasive and regular" or "severe and pervasive". This means that a single incident, if severe enough, can create a hostile work environment, even if the conduct is not pervasive. The Court's decision provides an important precedent for employees experiencing isolated instances of severe discrimination or harassment.
In the Castleberry case, the African-American plaintiffs alleged that their supervisor used a racial slur in their presence and threatened to terminate their employment. The supervisor's use of the "n-word" and the subsequent termination of the plaintiffs' employment a few weeks after they complained about the incident were deemed sufficiently severe to state a hostile work environment claim. The Court also found that the plaintiffs' allegations met the "pervasive" part of the standard, as they were subjected to additional racial hostility and discriminatory treatment in the workplace.
The Third Circuit's decision in Castleberry v. STI Group highlights the Court's recognition of the severe impact of racial slurs and discrimination in the workplace. This ruling sends a clear message to employers that even isolated instances of discriminatory conduct can create a hostile work environment for employees. It also underscores the importance of maintaining robust anti-discrimination policies and encouraging employees to report any instances of discrimination or harassment.
In summary, the Third Circuit's ruling in Castleberry v. STI Group has significantly shaped the legal standard for hostile work environment claims, emphasizing that severity and pervasiveness are alternative possibilities. This decision provides important guidance for employees, employers, and courts in recognizing and addressing hostile work environments, particularly those involving racial discrimination.
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Title IX and Title VI law in colleges
In 2011, the Obama administration instructed colleges to use Title IX to investigate sexual assault and harassment or risk losing federal funding. This prompted many colleges to establish Title IX offices and hire coordinators to handle complaints and investigations. This expansion of Title IX's scope left a lasting impact on colleges, increasing their responsibility for addressing a broader range of complaints.
The Trump administration, through Education Secretary Betsy DeVos, later reversed these guidelines, prioritizing due process for the accused. However, with the change in administration, there is uncertainty about the future direction of Title IX and Title VI enforcement. Some colleges have prepared for heightened enforcement by installing Title VI coordinators and offices to handle complaints and educate students on discrimination and harassment.
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The problem of sexual harassment on campuses
Sexual harassment on campuses is a pervasive issue that has gained increased attention in recent years. It encompasses unwelcome conduct of a sexual nature, including sexual advances, requests for sexual favors, and remarks of a sexual nature, which create an intimidating, hostile, or offensive environment for the victim. This form of harassment is considered sex discrimination and is prohibited by Title IX of the Education Amendments of 1972, a federal law applicable to almost all colleges and universities that receive federal funding.
Despite the legal framework in place, sexual harassment on campuses remains a pressing concern due to underreporting and inadequate reporting structures. Studies have found that a significant majority of colleges and universities report zero incidents of sexual assault or harassment, which contradicts the reality of its prevalence on campuses. This discrepancy can be attributed to various factors, such as individual students' fears of reporting, procedural gaps in institutional response, and the reluctance of institutions to be associated with these negative incidents. As a result, many incidents go unaddressed, and the true scope of the problem remains obscured.
The dynamics of power and the potential for retaliation further complicate the issue of sexual harassment on campuses. In some cases, the harasser may be in a position of authority, such as a professor or a supervisor, making it challenging for the victim to come forward. Additionally, there is a risk of retaliatory actions, which can take the form of significant changes to job duties, working conditions, or even threats. These actions can deter individuals from engaging in protected activities, such as reporting harassment or participating in investigations.
Furthermore, the interpretation of what constitutes sexual harassment has been a point of contention. While the Supreme Court of the United States has provided a clear standard for student-on-student harassment, the broad definition of sexual harassment under Title IX has led to concerns about infringing on free speech rights. This has resulted in a delicate balance between addressing sexual harassment and preserving expressive rights on campuses.
To address the problem of sexual harassment on campuses effectively, colleges and universities must prioritize creating safe and supportive environments for reporting. This includes establishing robust complaint and grievance processes, providing anti-harassment training, and fostering a culture that encourages individuals to speak up without fear of retaliation. Additionally, educational institutions should ensure that their responses to sexual harassment allegations are prompt, thorough, and aligned with legal requirements.
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The role of OCR in addressing harassment
The Office for Civil Rights (OCR) is a federal agency under the US Department of Education that enforces civil rights laws in education programs and activities that receive federal financial assistance from the Department of Education. This includes prohibiting discrimination based on race, colour, national origin, sex, and disability in schools, colleges, and universities.
OCR plays a crucial role in addressing harassment by enforcing civil rights laws and promoting equal employment opportunities. It manages the Anti-Harassment Program (AHP) and educates employees and students about unlawful employment discrimination and their rights. OCR provides technical assistance to institutions to help them comply with civil rights laws, including preventing and addressing discrimination and creating a safe learning environment for students.
OCR also collects data through the Civil Rights Data Collection (CRDC) to enforce civil rights statutes. The data covers various factors that impact education equity and opportunity, such as student access to courses, programs, resources, and school climate factors like student discipline and harassment. This data is used to identify and address any issues related to harassment and discrimination in educational institutions.
OCR empowers employees and students to proactively address issues of discrimination and harassment. It facilitates the resolution of complaints and advocates for change to overcome barriers that restrict equal employment and educational opportunities. OCR ensures that all employees and applicants are provided with fair opportunities for employment and career advancement, and it provides avenues for redress if discrimination or harassment occurs.
In the context of sexual harassment, OCR enforces Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, including sexual harassment, in educational institutions. OCR provides guidance and resources to schools to prevent and address sexual harassment and ensures that students are protected from retaliation if they report incidents.
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Frequently asked questions
Hostile harassment law refers to legal standards and principles that address conduct that creates a hostile environment. In the context of colleges and universities, hostile environment law typically pertains to Title IX and Title VI, which focus on discriminatory conduct based on gender, race, colour, or national origin.
Hostile harassment law in higher education is governed by Title IX and Title VI, which are federal civil rights laws. These laws cover all students and staff in educational institutions that receive federal funding, including colleges and universities. Title IX specifically addresses sex-based harassment and discrimination, while Title VI pertains to racial discrimination.
One significant challenge is the misapplication of hostile harassment law on college campuses. Some colleges and universities have been accused of using "overbroad harassment rationales" to suppress constitutionally protected speech. They have applied harassment policies to sanction offensive or disagreeable speech that does not meet the legal threshold for sexual or racial harassment. This misapplication of the law has resulted in the infringement of student speech rights.
