July 2, 2013
Recent accusations about certain colleges mishandling sexual violence cases have brought campus sexual assault policies under scrutiny -- and prompted a few federal investigations. The Department of Justice and Education Department recently drafted what one official called a "blueprint for reform" for how colleges should respond to such cases. This "resolution agreement" has ignited a protest among critics who contend that the guidelines, created to protect some individuals, could hurt others.
Last week Sen. John McCain (R-Ariz.) wrote an open letter to U.S. Attorney General Eric Holder accusing the DOJ of "single-handedly" redefining the definition of sexual harassment at colleges in a way that violates students' and teachers' free speech rights. The letter is a response to the resolution/agreement recently released by the DOJ and the Education Department, which McCain claims has defined sexual assault too broadly and might even undermine academic freedom.
The Huffington Post notes that the agreement in question laid out a set of policy reforms for the University of Montana after investigations of how the school handled reports of assault and rape. Deputy Assistant Attorney General Roy Austin Jr. described the DOJ's policy language for UM as "a blueprint for reform that can serve as a model for campuses across the nation."
McCain accused the DOJ of overreaching. He said it "is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ -- through a settlement -- rather than through congressional or regulatory action." He also suggested the agreement could violate free speech rights on campus.
According to The Huffington Post, The Foundation for Individual Rights in Education, a free-speech watchdog group, claims the resolution agreement "waters down" the definition of sexual harassment to include "any unwelcome conduct of sexual nature," including speech. In his letter, McCain posed a series of specific questions regarding how the new definition might be applied, for example, whether a student could be charged for telling a joke of a sexual nature, or whether a professor could get in trouble for using a masculine pronoun, e.g., "Each student must bring his own laptop to the exam."
The Office for Civil Rights denied that it had redefined sexual conduct, reported The Huffington Post, and the OCR clarified that colleges are still required to determine whether conduct is "objectively offensive." At a recent meeting of the National Association of College and University Attorneys, John DiPaolo, OCR deputy assistant secretary, called the agreement "a blueprint for other colleges, not the blueprint."
The school at the center of the case also denied that the agreement violates students' rights. UM legal counsel Lucy France told The Missoulian, "We're working on a draft policy that's consistent with the law, and not inconsistent with First Amendment rights and academic freedom. That's what we agreed to do with the DOJ."
Compiled by Aimee Hosler
"John McCain Challenges DOJ On College Sexual Harassment Policy," huffingtonpost.com, July 1, 2013, Tyler Kingkade
"Sen. McCain, free-speech groups weigh in on DOJ, UM settlement," missoulian.com, June 30, 2013, Martin Kidston
"SENATOR JOHN McCAIN SENDS LETTERS TO DOJ AND EPA ON OBAMA ADMINISTRATION SETTLEMENT ABUSE," mccain.senate.gov, June 26, 2013