Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

http://www.huffingtonpost.com/2013/07/17/campus-sexual-harassment_n_3613136.html?utm_hp_ref=mostpopular

Colleagues,

FIRE's misinformation campaign (see link above) against the Montana Resolution is clever.  FIRE has leveraged a free speech argument to continue its crusade to protect accused students.  But, OCR didn't say what FIRE is claiming it said in the agreement.  The publicity is so strong around FIRE's distortion that administrators are calling our offices, struggling with how they can both comply with Title IX and protect free speech.  That's easy.  First, read the three documents that OCR released, rather than just articles about what FIRE thinks OCR said (http://atixa.org/resources/free-resources/).  Once you read the actual resolution (and I am sure many of you already have), you won't find that the government has redefined sexual harassment, broadened the standard or infringed on anyone's free speech (or prohibited dating or any of the other imagined ills that FIRE and its compatriots assert).  

What OCR failed to do in the agreement was explain how to operationalize the distinction it made between sexual harassment and hostile environment.  To align with the blueprint (if you choose to do so), you'll need to revise policy, but you shouldn't need to change practices (if you were doing Title IX right to begin with).  Here's how to implement what OCR was getting at.  OCR wants us to define sexual harassment as unwelcome conduct of a sexual nature (as they have for some time).  They want us to express this in policy, to encourage victims to report low-level behaviors before they escalate to a discriminatory level, which is great prevention practice, but a policy change for most campuses.  Thus, we need to create a reporting standard, which encourages victims to report all unwelcome conduct of a sexual nature.  We can express this in a policy without making this a rule for which a charge can result (unless your campus is private and is not concerned with the 1st Amendment). In response to such a report, we need to be clear that we can offer victims remedies when they report behaviors that meet this standard, but to impose discipline, the conduct must also meet the discipline standard (which is the creation of a hostile environment). Hostile environment sexual harassment is defined as severe or pervasive and objectively offensive conduct.  FIRE's tirade that OCR removed the objective offense standard  (http://thefire.org/article/15765.html) plays slight-of-hand with the facts.  OCR clarified, correctly, that objective offense is an element not of sexual harassment but of the creation of a hostile environment.  This is the disciplinary standard because it rises to the level of a discriminatory effect which overcomes the protections of the 1st Amendment.  OCR never said that we should discipline anyone under the reporting standard, only that we should encourage reporting of such conduct.  This is strongly protective of victims (as Title IX always has been), helps to stem harassing conduct before it crosses the line, and helps institutions to manage the risk that occurs when the line is crossed.  Despite the repeated clarity of all of this in the Montana documents and OCR's subsequent letter to FIRE, FIRE continues to distort the plain language of the resolution.  

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

President & CEO, The NCHERM Group LLC

Executive Director, The National Behavioral Intervention Team Association 

Executive Director, The Association of Title IX Administrators 

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