By David L. Hudson Jr.
First Amendment Center research attorney
An intriguing First Amendment issue arises when university professors are charged with sexual harassment for what they say or do in class.
Universities must combat sexual harassment, a pervasive problem in society. Polls have indicated that an alarmingly high number of female students have been subjected to some form of harassment during their college years. But universities also represent unique marketplaces of ideas where the thought of silencing educators’ in-class expression sounds downright repressive.
After all, the First Amendment should provide for robust discussion in a university classroom setting. First Amendment advocates assert that many university professors chill their own speech in order to avoid saying anything that might offend students. This, the advocates warn, could lead to a sterile learning environment.
Public universities have a legal responsibility to prohibit sexual discrimination in education. A federal law known as Title IX requires such action. 1 Title IX provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under Title IX, Congress can withhold federal funds to universities that allow sexual discrimination in the university setting.
This duty to prevent sexual discrimination extends to so-called “hostile environment” harassment. The U.S. Department of Education defines hostile environment discrimination as follows:
Hostile environment harassment occurs when unwelcome conduct of a sexual nature is so severe, persistent, or pervasive that it affects a student's ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment. — Office of Civil Rights, “Questions and Answers about Sexual Harassment”
Harassment law prohibits severe and pervasive harassment that alters the conditions of the workplace or classroom. Professors who create a hostile learning environment can be subject to discipline under a university sexual harassment policy.
But, applying a sexual harassment policy to a professor’s in-class speech raises substantial First Amendment concerns. If the teacher’s speech is not directed at a particular student for sexual favors, the First Amendment concerns loom larger. “If the speech is not repetitive, severe and persistent, then generally it should receive protection,” says University of Pennsylvania history professor Alan Charles Kors.
Kors’ colleague at the Foundation for Individual Rights in Education, attorney Harvey A. Silverglate, wrote in a 1999 memorandum: “Title VII workplace law and Title IX education law cannot be interpreted so as to allow, much less require an institution of higher learning to curtail speech anywhere on campus, especially in the classroom which is the cauldron of the educational process. Such laws may be applied to genuine harassment, but not to speech cleverly classified as acts of harassment. If these statutes and regulations were in fact interpreted to apply to pure speech, they would thereby be rendered unconstitutional.”
Despite arguments that punishing professors for in-class speech violates the First Amendment, several university professors have faced discipline for violating sexual harassment regulations based on their in-class speech. Many of these cases began in the early 1990s, although it took several years before a federal court ruled in the matters. A few examples follow:
Silva v. University of New Hampshire
In 1992, several students at the University of New Hampshire accused tenured faculty member and writing instructor Donald Silva of sexual harassment in part because of his comments in class. These allegedly included:
- “Focus is like sex. You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.”
- “Belly dancing is like jello on a plate with a vibrator under the plate.”
Eight students filed written complaints with the university. The school created another section of the class and 26 students transferred from Silva’s class to the other instructor. University officials reprimanded Silva for violating the school’s sexual harassment policy. He filed a grievance that was denied. The university suspended him without pay.
At a formal hearing, a panel found that Silva’s comments “contributed to a hostile academic environment.” The university placed Silva on leave without pay for one year and required him to receive counseling before teaching again.
After losing his appeals in the university system Silva sued in federal court, contending that his First Amendment rights were violated. A federal district court sided with Silva.
The court focused on the fact that some of Silva’s statements, such as the vibrator statement, were not necessarily sexual. The court also emphasized that the university’s sexual-harassment policy did not prohibit nonsexual verbal conduct.
“The court finds that Silva’s classroom statements advanced his valid educational objective of conveying certain principles related to the subject matter of his course,” the court wrote. “The record demonstrates that Silva’s classroom statements were made in a professionally appropriate manner as part of a college class lecture.”
The court concluded that the university’s sexual harassment policy “as applied to Silva’s classroom speech is not reasonably related to the legitimate pedagogical purpose of providing a congenial academic environment because it employs an impermissibly subjective standard that fails to take into account the nation’s interest in academic freedom.”
Legal commentator Lisa Woodward wrote that “the court’s great deference to academic freedom effectively negated the mandates of Title IX.” However, Kors, president of FIRE, disputes this characterization, calling the prosecution of Silva “beyond belief.”
Cohen v. San Bernardino Valley College
Dean Cohen taught a remedial English class at San Bernardino Valley College. He used a self-described “confrontational teaching style designed to shock his students and make them think and write about confrontational subjects.”
In 1992, he read articles to his class that he had published in Hustler and Playboy magazines. He led classroom discussions on topics such as obscenity, cannibalism and consensual sex with children.
After a student complained, the university determined that Cohen had violated the school’s sexual harassment policy. The board of trustees ordered Cohen to warn students ahead of time of his “confrontational style,” attend a sexual harassment seminar, and be cognizant of how his teaching style might affect his students.
Cohen sued the school, claiming a violation of his First Amendment rights. A federal district court rejected Cohen’s arguments, finding the sexual harassment policy constitutional.
On appeal, the 9th U.S. Circuit Court of Appeals reversed, finding that the policy was “simply too vague as applied to Cohen in this case.”
The court reasoned: “Cohen’s speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy’s nebulous outer reaches to punish teaching methods that Cohen had used for many years.”
Rubin v. Ikenberry
Louis Rubin was a tenured education professor at the University of Illinois. In 1990, Rubin allegedly made numerous in-class remarks of a sexual nature, including: discussing his prior sexual experiences, telling stories about his ex-wife and daughters, telling dirty jokes and making demeaning sexist comments.
For example, Rubin asked a student if she would marry a paraplegic with “no vital functions from the waist down.” Rubin joked that teachers make good prostitutes because teachers make their customers (students) “do it again and again until they get it right.”
Rubin argued that he was “teaching of modern values, morals and social conditions.” He also said that he talked about topics of a sexual nature because such comments held the interest of his students.
The university removed Rubin from the classroom. After his termination, he sued, claiming a violation of his rights under the First Amendment and academic freedom. A federal district court rejected his arguments, finding that his in-class comments were “exceedingly remote from the First Amendment’s concern with protecting socially valuable expression.”
“Rubin’s classroom comments which have a sexual focus do not appear connected to the course content and legitimate objective of teaching students how to teach elementary school social studies,” the court wrote. “The degree of departure from the expected course content to Rubin’s comments appear(s) extensive.”
Balancing harassment, academic freedom
The courts have struggled to come up with a consistent way to balance a university’s duty to prevent sexual harassment with its duty to protect freedom of speech and academic freedom. Part of the problem comes from the nebulous definition of academic freedom. Some argue that academic freedom protects a university only from the state. Others argue that academic freedom includes an individual professor’s right to teach and conduct class as she or he sees fit without limits.
Whatever the reason, the courts struggle with defining the contours between the two concerns. In Lamb v. University of Hawaii, the 9th Circuit granted qualified immunity to a university from a lawsuit by a professor investigated for sexual harassment. The court granted the university immunity, writing “there has not been a determination as to the scope of a college professor’s First Amendment rights in the classroom.”
Some courts will apply the generalized test for public employee speech. Other courts will apply a special balancing test that takes into account the university’s position as public employer, academic freedom and the context of the university classroom, as in Bishop v. Aronov (11th Circuit, 1991). Still other courts will analyze a professor’s free-speech claims using the U.S. Supreme Court’s “reasonably related to a legitimate pedagogical (or educational) interest” standard from the high school press-censorship case of Hazelwood School District v. Kuhlmeier. A 10th Circuit case in 2000, Vanderhurst v. Colorado Mountain College District, made reference to this standard.
Legal commentators have different views on how the courts should balance the competing interests of preventing harassment and protecting freedom of speech.
Some experts emphasize the duty to prevent sexual harassment and discrimination. “Sexually harassing behavior is not tolerated in the workplace, and it should not have to be tolerated in the classroom,” writes legal commentator Woodward.
Similarly, George Mason University law professor Jon Gould warns that often the balance has swung too far in favor of university professors. He writes: “Unlike employment cases, courts often seem to balance faculty and student conduct with concerns for ‘academic freedom,’ in the process dismissing collegiate claims that would go forward in the workplace.”
Gould adds that “academic freedom has the potential to become a defense that prohibits the prosecution of cases that deny women equal treatment in the university setting.” He contends that “academic freedom has been interpreted too broadly, becoming essentially a defense for courts — and perhaps collegiate administrators — who do not want the difficult but essential task of distinguishing constitutionally protected speech from harassment.”
“Academic freedom is about education,” Gould writes. “When hostile behavior gets in the way of the educational process, academic freedom must give way to equal opportunity.”
“What is needed is a clear test for evaluating the free speech rights of teachers in the classroom in situations where that speech collides with the students’ rights and the universities’ responsibilities,” Woodward writes.
But Kors says that Title IX must give way to the First Amendment when the two come into direct conflict. “No regulation or statute conceivably may trump the First Amendment,” he says. “Universities should always err on the side of academic freedom and free speech because we live in a free society and we want free citizens.”
“In effect, what has happened at some universities is that a veto power over professorial speech has been given to those that may have a subjective response of taking offense at certain speech,” Kors says.
The key, according to Robert Richards, head of the Pennsylvania Center for the First Amendment and an associate dean at Penn State University, is whether the speech is germane to the subject matter.
“For example, if I was teaching a media law class I could use the word 'fuck' when discussing the Cohen v. California case (in which the U.S. Supreme Court reversed the conviction of a man for wearing a jacket bearing the words 'Fuck the Draft'),” Richards explains. “It would be germane to the subject matter. However, if I used the term repeatedly in math class, that would not be germane.”
Both Richards and Kors, ardent defenders of the First Amendment, say that it often boils down to a question of professionalism. Richards emphasizes that he would not want to have an academic environment where many students felt uncomfortable.
“I am in favor of rules of professional conduct,” Kors says, “if they are applied equally.” He argues that many current sexual harassment policies are unfairly applied. He claims, for instance, that a Dean Cohen or Dan Silva can be charged with sexual harassment but that a feminist professor could use even more graphic language and not face discipline.
“Rules of professional conduct that are applied to all — including feminist professors — would be a better method than the current system,” Kors says.
Sexual harassment is a problem in society that should be remedied. Title VII, Title IX and a host of state anti-discrimination laws serve that high purpose. But when sexual-harassment charges are brought against professors solely for their in-class speech, the rights of free speech and academic freedom are threatened.
1 20 U.S.C. 1681