The Women's Freedom Network Newsletter
July/August, 2000, Vol. 7, Number 4.

Sexual Harassment Policies
and Academic Freedom
at George Washington University

G eorge Washington University, the oldest in Washington, D.C., has about 15,000 undergraduate and graduate students. It also has roughly 1000 full time faculty plus more than twice that number of part time faculty.(1) For several years, our University administration, like others, has been sensitive to the ethical, legal, and political pressures for strict sexual harassment policies and procedures. As many readers know, Equal Employment 0pportunity Commission (EEOC) interpretations of Title VII of the Civil Rights Act of 1964, aimed at preventing discrimination in the workplace, have been applied by the Department of Education under Title IX to the nation's colleges and universities.(2) The unfortunate result has been that the central academic commitment to unfettered inquiry has often been discounted in favor of proscribing controversial speech, even in the classroom.

While the outlawing of quid pro quo harassment-- a type of extortion--is not controversial, the EEOC prohibition against causing a "hostile or intimidating environment" can constitute an expansive and incomprehensibly vague speech code. Furthermore, it may be enforced by sanctions against the University by the Department of Education (which can withdraw eligibility for government contracts or terminate them) and by private laws suits against the University, with jury trials and potentially unlimited damages.(3) Court and administrative decisions have created an affirmative defense in some contexts if the educational institution has adopted "effective" policies and procedures to prevent and promptly correct harassment, thus further encouraging internal policies and proceedings and discouraging burdening the courts.(4)

Fearing the threat of liability and sanctions more than the consequences of limiting freedom of academic expression , colleges and universities have commonly hastened to extravagantly comply with the vague proscriptions against "hostile environment" harassment. As Nadine Strossen, President of the American Civil Liberties Union has noted, " ... many employers, universities, courts, and other policymakers have drawn the line far beyond any legitimately proscribable harassment" and thus have egregiously violated not only free speech principles but also equality principles."(5)

University administrators and their lawyers have had important allies in the effort to limit speech.. Censorious feminists have regarded much language relating to sex as oppressive to women and even as a weapon in the maintenance of a male patriarchy of power.(6) Hostile environment prohibitions have been urged as a means of protecting the vulnerable, of reducing undesirable speech and conduct, and of restructuring male-female interaction. In addition, administrators, counselors, and investigators have personal interests in creating offices, staffs, and areas of authority engaged in addressing claims of harassment.(7) In recent years, what Daphne Patai has called a Sexual Harassment Industry has been created on many--perhaps most--campuses.(8)

At George Washington the process of sexual harassment policy development has extended over several years. Earlier versions of the suggested policy specifically exempted course content and assigned materials from coverage, because the regulation of such matters was deemed inconsistent with the guarantee of academic freedom contained in our Faculty Code. GW's interim sexual harassment guidelines, presently in effect, continue to include this vital exemption. In 1997, our Vice President for Academic Affairs submitted a proposed "Policy and Procedures Governing Sexual Harassment" to the Faculty Senate for its review and consideration, while announcing his intention to implement them on an interim basis. The Senate in turn referred them to its Committee on Professional Ethics and Academic Freedom (PEAF), on which I have served for many years.

A subcommittee of PEAF, headed by Professor Cynthia Harrison, an outspoken member of the women's studies faculty, proposed revised policies that would extend hostile or offensive speech prohibitions into the classroom and enforce its prohibitions through draconian punishment procedures lacking fair process guarantees. The full PEAF Committee revised the proposal to make Faculty Code protections explicitly applicable to sexual harassment enforcement proceedings. In addition it voted to eliminate the restrictions on classroom speech. Professor Harrison immediately resigned from PEAF, stating that she could not continue to participate in view of the decision to exclude classroom behavior from the proposed policy.

Appearing before the full Faculty Senate, Professor Harrison called for the creation of a new committee to consider the matter, and an ally on the Senate so moved. As a result, a joint faculty-administration "Ad-Hoc Committee" was established. As has been our common experience in the past, this committee was dominated by the views of the administration. The administration's position was effectively supported by the active participation of outside counsel to the university, Mr. Martin Michaelson, a partner of the firm of Hogan and Hartson and a veteran of administration-faculty conflicts on other campuses. The Associate Vice President for Human Resources favored deletion of the classroom exclusion and proposed utilization of a special bureaucracy (in which she would play a central role), including a sexual harassment "coordinator" and special tribunals, in which faculty would hold a minority of positions. These tribunals would judge, by majority vote, the guilt of those faculty members accused of harassment. Furthermore, all "relationships," whether sexual or not, between persons where one exercised authority over the other would be completely banned. My own suggestions to the Ad Hoc Committee, urging protection of academic freedom in the classroom, as well as utilizing existing procedural protections of the Faculty Code in cases in which faculty were accused, were rejected.

The work of the Ad Hoc Committee extended over much of a year. This January, the Ad Hoc Committee unanimously issued a report to the Senate, stating that its proposal reflected contemporary federal law, the advice of Mr. Michaelson, its review of 11 sexual harassment policies of other universities, consultations with members of the university community, and literature on sexual harassment.

While recognizing at the outset that the university was committed to "cultural and intellectual diversity and built upon a foundation of integrity, creativity, and openness to exploration of new ideas," the proposal promptly added: "Sexual harassment is destructive of such a climate and will not be tolerated in the University community."(9) The Committee then purportedly defined sexual harassment by using the EEOC and Department of Education statements proscribing not only quid-pro-quo advances, but a lso conduct which has the effect of creating an intimidating, hostile, or offensive academic or work environment. While reiterating the commitment of the university to academic freedom, the Committee added, "Sexual harassment is outside the protected boundaries of academic freedom." Thus, it suggested that the principles of academic freedom do not protect behavior that violates the policy.

Procedurally, the Ad Hoc Committee report provided for persons who are "uncomfortable" with conduct of a sexual nature that might constitute sexual harassment, to contact the office of Vice President and General Counsel for the assignment of a coordinator. The coordinator, following consultation with the complainant, could then conduct a confidential investigation. No opportunity was provided for the accused to know the nature of the charges or to present defensive information to the coordinator. Nonetheless, at the conclusion of the investigation and without any hearing, the coordinator would be authorized to prepare findings and recommendations for disciplinary action, which could be imposed within the discretion of the responsible university official and could include termination. Appeal to a "special pane1" selected by the Associate Vice President for Human Resources could be denied, also without a right to any hearing. Even if a hearing were granted, no right to confront or question the complainant was provided. Again, the panel would not contain a majority of faculty members, even when a faculty member was the accused, and conviction would be by majority vote based on the preponderance of the evidence.

Alarmed by this report, I urged the PEAF committee to recommend that a number of amendments be made on the Faculty Senate floor. I also invited the law faculty to become involved in the process by attending a discussion of the Ad Hoc Committee report, the suggested PEAF amendments, and the far more careful guidelines that had been adopted by the Harvard Law School faculty. (Harvard University has adopted conventionally thoughtless, economically self-protective policies. Its law school, however, following careful consideration by its faculty, developed detailed and far more well-developed guidelines.(9) 22 members of our law faculty discussed the report, and at the conclusion of the meeting they unanimously voted that the recommendations of the Ad Hoc Committee were "deeply flawed," both substantively and procedurally. Law students also expressed concern that individual faculty members might respond to the draconian provisions of the Ad Hoc Committee's proposal by eliminating controversial subjects from their syllabi to avoid the possibility that any student might be offended and file a sexual harassment complaint.

The faculty vote had a dramatic effect. In informal meetings between three members of the law faculty, two members of the Ad Hoc Committee, and Mr. Michaelson, it was agreed that many of the most sweeping and unfair components of its report should be changed, and the Ad Hoc Committee issued a substantially revised report in March. The PEAF Committee and others suggested a number of additional changes, many of which were approved by the Faculty Senate itself in a series of meetings. As approved by the Faculty Senate, potential complainants are to be informed that one option is to speak to the faculty member who has engaged in the offending behavior, or his or her department chair or dean; thus invocation of university-level procedures is not the only alternative. The co-ordinator will provide a person accused of sexual harassment with notice of the charges in sufficient detail to permit an informed response. No sanctions may be imposed on the basis of the coordinator's informal investigation without the consent of the accused. If formal charges are filed by either the complainant or the university administration, the special panel (in the case of a faculty defendant) is to have four-fifths faculty representation.

The complainant's identity must be disclosed to the defendant, and both parties have the right to confront and question adverse witnesses and to the assistance of counsel. Sanctions can be imposed only after a finding of guilt approved by four-fifths of the panel on the basis of the substantial weight of the evidence.

Substantively, the Senate-approved policy states that expression in an academic setting that is reasonably designed or intended to contribute to academic inquiry, debate, or education is excluded from being considered sexual harassment.

The Senate version of the policies and procedures, while much improved, are less than ideal. The partial exclusion of classroom expression from sanctions is subject to significant limitation: If a panel finds an expression "unreasonable," even though uttered in good faith at the time, sanctions may still be applied. Furthermore, the accused may decide that it is better to consent to sanctions proposed by the university administration and waive his or her right to a hearing, rather than risking even harsher punishment after formal proceedings. Indeed, this seems to be the practice here at George Washington under present practices, and at other universities. Even if one believes himself or herself innocent, it takes courage to reject a quiet academic plea bargain and endure the trauma, expense, notoriety, and potential risk of trial.(10)

Finally, our administration has yet to act. Hopefully they will accept policies and procedures that reflect the Faculty Senate's effort to protect academic freedom and afford due process rather than the draconian proposals previously made. Yet the potential liability concerns and political pressures remain. Counsel retained by the university may recommend the conventional self-protective excesses against all conceivable liability, and the outcome remains unpredictable.

Endnotes
1. The George Washington University Factbook, http://www.cjwu.edu/-tables.htm
2. See Department of Education, Office for Civil Rights Sexual Harassment Guidance, 62 FR 12034 (1997) (hereinafter: OCR Guidance).
3. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
4. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); OCR Guidance, at p. 12039; but see Gebser v. Lago Vista Independent School District, 118 S.Ct. 1989 (1998) (actual knowledge of the harassment by defendant required for monetary damage liability to student under Title IX); Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999).
5. Nadine Strossen, "Defending Pornography" (1995), at p. 126.
6. See, e.g., Catharine MacKinnon, "Only Words" (1993); Anne Lawton, "The Emperor's New Clothes: How the Academy Deals with Sexual Harassment," 11 Yale Journal of Law and Feminism p. 75 (1999); Bernice R. Sandler, Robert J. Shoop, "What is Sexual Harassment? In Sexual Harassment on Campus" A Guide for Administrators, Faculty, and Students c. 1 ((1997).
7. Daphne Patai, "Heterophobia--Sexual Harassment and the Future of Feminism" (1998) c. 2.
8. See Alan C. Kors and Harvey A. Silverglate, "The Shadow University--The Betrayal of Liberty on America's Campuses" (1988), which is based on examination of several hundred academic codes and the personal experiences of the authors and others. Id. At 87.
9. http://www.law.harvard.edu/Adminstrativeservices/Personnel/harassment .html
10. See Kors and Silverglate, supra, n. 7, at p. 24.

by David Robinson, Jr.