The Chronicle of Higher Education copyright(c) Date: September 13, 1996

Protecting Free Speech When the Issue Is Sexual Harassment


By Robert M. O'Neil

If sexually harassing is the least tolerable form of professorial speech, it may also be the hardest to define and constrain. But now, in the first federal appellate ruling on purely verbal harassment, the U.S. Court of Appeals for the Ninth Circuit has provided some guidance to institutions that seek to curb such expression. The ruling also offered some implicit warnings about policies that contain excessively broad language.

The case arose at San Bernardino Valley College, when a grievance committee and the college's president found Dean Cohen, a long-time English teacher, guilty of sexual harassment. A female student in his remedial English class had complained that she found his teaching style and classroom materials offensive; he conceded that he could be "abrasive" and "confrontational." The facts were not in dispute: Mr. Cohen had used profanity and vulgarities, had occasionally read articles from Playboy and Hustler aloud in class, and had discussed such topics as obscenity, cannibalism, and consensual sex with children. The student had asked for an alternative exercise when Mr. Cohen assigned a paper asking students to "define pornography," but Mr. Cohen refused her request.

After he was found guilty of sexual harassment under San Bernardino Valley College's newly adopted harassment policy, Mr. Cohen sued the college in federal court, claiming that his rights to free speech had been violated. The college's policy included in its definition of sexual harassment speech or conduct that unreasonably interferes "with an individual's academic performance" or that creates "an intimidating, hostile, or offensive learning environment." A district court upheld the college's action, while recognizing that so broad a harassment policy might give "the most sensitive and easily offended students ... a veto power over class content and methodology." The judge also upheld the college's order that Mr. Cohen be required to attend sexual-harassment seminars, to "become sensitive to the particular needs of his students," and to "modify his teaching strategy when it becomes apparent that his techniques create a climate which impedes the students' ability to learn." The college also told Mr. Cohen that further violation of the policy could result in discipline "up to and including suspension or termination."

The appeals court unanimously reversed the district judge, faulting the vagueness of the college's policy. What especially troubled the court was that a professor's "sexually oriented teaching methods" could be found to create a "hostile learning environment" and could lead to severe sanctions under the policy. Invoking such imprecise terms, the court warned, would "trap the innocent by not providing fair warning," and amounted to "legalistic ambush."

What does the Ninth Circuit's ruling mean for other harassment policies that proscribe conduct that creates an offensive "climate" or "environment"? The appeals court stopped short of declaring all "hostile environment" policies invalid.

The opinion left open, among other issues, whether classroom speech such as Mr. Cohen's might be punishable if a harassment policy, as the appeals court put it, "were more precisely construed by authoritative interpretive guidelines or if the College were to adopt a clearer and more precise policy."

Nonetheless, this judgment creates grave doubts about harassment policies that are aimed at classroom speech that produces an offensive environment. The court was concerned that such policies could penalize controversial or provocative pedagogical styles or the choice of teaching materials containing sexual themes -- teaching styles and materials that might challenge or engage some students, even as they offended others. (Although the court stopped short of saying that Mr. Cohen's teaching constituted speech protected by the First Amendment, it did note that his style had long been deemed "pedagogically sound and within the bounds of teaching methodology permitted at the college.")

After the Cohen case, colleges should carefully review existing policies that attempt to deal with the presence of a hostile teaching environment. There are alternatives to the type of wording in San Bernardino's policy that would serve the same laudable goal -- deterring unacceptable sexism in the college classroom -- without falling afoul of the Constitution.

Last year, for example, the American Association of University Professors suggested a sexual-harassment policy for institutions' consideration. Under the terms of that policy, before it may be punished as harassment, speech "of a sexual nature ... directed against another" must be shown to be "abusive" or "severely humiliating" or to have persisted despite the objection of the person or persons against whom it was directed. Alternatively, it must be speech that is "reasonably regarded as offensive and substantially impairs the academic or work opportunity of students, colleagues, or co-workers."

The latter option includes a critical stipulation: If a complaint is lodged against speech of a sexual nature uttered in the context of teaching, to be found to be sexual harassment the speech must also be "persistent, pervasive, and not germane to the subject matter." Therein lies the key to the dilemma posed by the Cohen case. A harassment policy that is limited and qualified in this way would almost certainly meet the court's wish for "a clearer and more precise policy." Such a policy would also minimize the risk of punishing professorial speech that might offend some students, but nonetheless is "pedagogically sound" -- for example, because it helps hold the attention of marginal students.

At the same time, such a policy would effectively address unacceptable harassment or exploitation of sexual themes in the classroom. It would clearly proscribe sexually oriented jibes, jokes, taunts, and the like that are addressed to another person, when they are abusive or severely humiliating or persist despite objection from the person addressed.

But what about speech not directed at a particular individual? Even though it creates a hostile climate or environment, speech that is not accompanied by physical harassment and that is not targeted at an individual should not be the sole reason for getting rid of a teacher. Something more clearly detrimental to basic academic values should be required for so severe a penalty, and such a situation also can be covered by a carefully bounded harassment policy. If, for example, a professor (save possibly in a course on 20th-century American humor) begins each class with a round of sexist jokes, the conditions of the A.A.U.P.'s or similarly worded policies would seem to be met: The speech would be "persistent, pervasive, and not germane to the subject matter."

One other issue is important. Fair procedures are as essential in dealing with sexual harassment as they are in any other area of professorial misconduct. The intolerability of sexual harassment does not justify diluting the rigorous standards and safeguards that apply to the handling of other charges of misconduct. Informal procedures may, of course, be used to gather evidence or to facilitate the mediation of complaints, but when formal charges are filed and heard by campus officials, a faculty member's right to due process of law must be protected. Consistent with past legal precedents, the Ninth Circuit noted in the Cohen ruling that "Cohen was simply without any notice that the Policy would be applied in such a way as to punish his long-standing teaching style."

If classroom language creates a hostile climate but does not fall within the bounds of what the courts allow to be proscribed, the language still cannot be ignored by institutions. Indeed, the cases that have ended up in court would never have got that far if the academic system had been working properly. College teachers who create a hostile classroom climate, however acceptable their teaching styles may be to some students, must be warned of the corrosive effects of their behavior. They need to be guided by deans, department heads, and other colleagues in the quest for teaching methods and materials that enliven classes without offending or demeaning their students.

The first indication of students' concern about a professor's use of sexually sensitive material might, for example, warrant a classroom visit by someone designated by the department. Teaching-resource centers, which now exist on most campuses, should devote special attention to concerns about sexually sensitive material, so that faculty members become more aware of ways in which their teaching may unintentionally offend or alienate students. It also is clear that regular reviews of the classroom teaching of both tenured and non-tenured professors should include greater attention to practices that might impair the learning environment. It is such constructive approaches, not coercive sanctions or penalties, that constitute the most appropriate academic response.

While the Cohen decision leaves open many more issues than it settles or even addresses, it does, at the very least, warn us that in dealing with restrictions on speech in the classroom, vague and imprecise standards simply will not do. Precision of language and clarity of policy now are required in this realm, just as they have been for many years in policies dealing with other restraints on speech.

At the same time, the decision intensifies the need to make our campuses and classrooms more welcoming to all students. The issue is not whether sexual harassment in any form is tolerable, for surely it is not. Rather, the issue is how we define and address practices that we all agree have no place in the academy.

Robert M. O'Neil is the founding director of the Thomas Jefferson Center for the Protection of Free Expression and teaches constitutional law at the University of Virginia.