A study of more than 400 colleges released this week called into question Fort Lewis College’s sexual harassment policy, saying it restricts students’ right to free speech.
FLC’s sexual harassment policy states: “Sexual harassment is defined as unwelcome conduct of a sexual nature, unwelcome sexual advances, requests for sexual favors and other visual, verbal or physical conduct of a sexual nature.”
The Foundation for Individual Rights in Education, also known as FIRE, a nonprofit focused on protecting free speech rights, focused on FLC’s policy for its broad use of language that could be used to unfairly limit expression. But FLC said the policy, revised this year, is designed to encourage students experiencing sexual harassment to come forward early before a situation becomes extreme.
FLC was one of two institutions in Colorado that received a “red light” from FIRE – a rating given to an institution that “clearly and substantially restricts freedom of speech.” The other ratings are a “green light” for policies that don’t imperil freedom of speech and a “yellow light” for policies that restrict a limited amount of speech or could be used to restrict speech because they are vague.
The foundation has been rating schools since 2006 and has seen the number of “red light” policies decline each year, said Laura Beltz, an attorney with FIRE.
“Those are the most clearly unconstitutional on their face,” she said of schools with a red light rating.
Adams State University in Alamosa was the other Colorado college to receive the rating.
FLC’s policy is problematic because it is broader than the U.S. Supreme Court’s legal standard for harassment and could be used to investigate or punish speech that is protected by the First Amendment, Beltz said. It is so broad it could be applied to a single off-color joke, she said.
The Supreme Court defined peer harassment in Davis v. Monroe County Board of Education in a far more limited way as behavior that is “so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Students can face harsh punishment for overly broad harassment policies, Beltz said.
In one case, a student attending the University of Oregon in 2014 shouted, “I hit it first” – a reference to having sex with someone – to a couple outside her dormitory. She was charged with five conduct violations that were later dropped when FIRE became involved, according to the foundation.
FIRE is a nonprofit, nonpartisan group with ties to right-leaning organizations, according to SourceWatch, published by the Center for Media and Democracy.
FLC Title IX Coordinator Molly Wieser said the school’s response to sexual harassment situations is educational and leaves room for free speech and respectful communication.
Without a comprehensive sexual harassment policy, students would be unlikely to report incidents that cross personal boundaries, and opportunities to do informal education would be missed, Wieser said.
“Students would likely wait until situations were extreme and quite damaging to seek help,” she said in a written statement.
Often, students reporting potential sexual harassment want guidance about how to handle the situation on their own, she said.
Students can also ask the college to act as a mediator to set boundaries if they feel harassed. In those cases, students generally agree about what happened, but they disagree about what the speaker intended, Wieser said.
Students accused of sexual harassment have the opportunity to explain their intentions and hear from a third party about how certain statements may have been perceived.
Students are encouraged to think about communicating in a way that achieves a positive objective. They are also educated on what “no” looks like and how to interpret indirect statements or actions as disinterest.
The education is intended to prepare students for the future, Wieser said.
“People who know how to identify and articulate their own boundaries, and people who can recognize and respect the personal boundaries of others, will be happier and I think, healthier,” she said.
[email protected]The spelling of Molly Wieser’s name has been corrected.