Proposed definition of Harassment is “Objectively Bad”

Written by: Dr. Trish Oberweis, Professor Criminal Justice

In 2011, the Office of Civil Rights sent a policy change to all schools receiving federal funds instructing them that they are required to provide a safe environment for all learners. This was in reaction to a particular (although not unique) study documenting that a quarter of college women are sexually assaulted during their college years (this does not mean raped, necessarily). They created an avenue for sexual assaults and sexual harassment to be handled through the compliance offices already on campus; whether this system would be in lieu of or in addition to the police was to be at the preference of the reporter. This was, in part, done to rectify the utter failure of the CJS to provide appropriate support to women reporters, and to ensure that survivors would not give up their education in frustration or fear.

In the years between then and now, Universities have been mandated to create an internal, parallel, non-police structure for addressing rape, assault and harassment on campus, through their Equal Opportunity offices, often called the “Title IX process.” These structures are new—and therefore not perfect—but always under both improvement and heavy fire from those who believe that men are unfairly being hassled for what too often amounts to a disgruntled or potentially dishonest woman who should simply use the police to report the alleged crime.

Betsy DeVos has been outspoken on her perception of injustice perpetrated on men in these Title IX investigations. Her commitment from Day 1 was greater justice in these processes, by which she meant that the benefit of the doubt must be accorded to the man and the process should mimic the failed CJS process (with counsel, cross examination, beyond a reasonable doubt (BARD) standards instead of a preponderance of evidence standard—although BARD is for those facing imprisonment, and is never the standard in civil processes; Title IX is a civil process, not a criminal one). Title IX can be used for reporting sexual assaults AND for reporting sexual harassment.

What is Title IX?
What is Title IX? Image Credit:


December 1 or so, Ms. DeVos posted her proposed rule change. She did this on the Federal Register, which is a public comment forum that is required to remain open for public comment for 60 days before she can change policy. Better still, she must summarize and respond to the comments before her proposal can go forward. Evidently to thwart public comments, she opened it at a time designed to overlap with winter breaks and final exams for the nation’s University students—the very people most likely to have comments about the proposed changes. In this way, she is sending a strong message.

United States Secretary of Education, Betsy DeVos
United States Secretary of Education, Betsy DeVos

She is beginning her efforts to undermine the Title IX mandate by focusing on sexual harassment, rather than assault. Her specific rule changes read nicely: give every credible report a thorough vetting, allow due process to both sides, allow appeals for both sides, or for neither, etc. The key is in her definition of harassment, which will essentially eliminate the need for an investigation at all. She moved to change the definition of harassment to from the well-established “unwelcome conduct of a sexual nature” to behavior that is “severe, pervasive, and objectively offensive.” I ask: Objective to whom? No reporter will be able to pursue justice or even safety under this definition. A woman in a classroom in which the instructor refers routinely to “cute girls” in the class and is made to feel uncomfortable with the instructor’s constant discussion of these cute bodies, or leering at them, for examples, will have no claim, as such comments or hungry eyes would not necessarily be “objectively offensive.” A woman who is the subject of a veiled threat could be in the same situation—because it isn’t pervasive. A faculty member who brings colleagues or students in a class to strip clubs to socialize would go unchallenged, as strip clubs are not offensive to everyone. Meanwhile, women who feel unsafe or must endure a hostile learning or work environment will be driven off campus and their economic future will be jeopardized.

We must raise the hue and cry and generate a loud set of objections, using the Federal Register. Not only do we need to activate our networks here, but also to send this out to feminists at other Universities and ask them to activate their networks, too. It is crucial to keeping this fledgling system alive. For the record, punishment through this system remains shockingly rare, but nor has it had time to build the trust and awareness that will be necessary for it to provide the necessary measure of safety.

Women lived for generations with the understanding that others would not come to their aid if they were forced to endure harassment or assault, under the rationale that others just don’t get it. The past year or two have left no place for denial: the thousands of women who told their stories have sparked a change in the plausible deniability of bystanders. We, the bystanders, must take this opportunity to demonstrate that we understand the pervasive and damaging behavior of harassers and assaulters and we must stand up for the safety of all future victims. The Federal Register comment period (through January 28) is a meaningful opportunity for everyone to exactly that. Please voice your concern for the well-being of women students and object to Ms. DeVos’ policy change.

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