November-December 2003

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Legal Watch: Sexual Harassment Policies on Campus

By Donna R. Euben

A junior faculty member calls you because, she says, her department chair touched her inappropriately at an off-campus conference. A student comes to you distraught about having been propositioned in the campus lab on several occasions by a graduate assistant. A department secretary asks you to reassign her so she no longer has to work with a particular junior faculty member, because she's disturbed by his questions about her sex life. What to do? The specific steps you take will depend on your campus's policy, but the bottom line is, do not ignore the complaint.

Two federal laws govern sexual harassment in the academy: Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, and Title IX of the Education Amendments of 1972, which prohibits discrimination in educational programs and activities that receive federal financial aid (a group that includes almost every college and university). Under Title IX, faculty are "appropriate officials" to whom a student can turn with allegations of sexual harassment. Depending on university policy, faculty, especially those who serve as department chairs or program directors, may also be responsible for appropriately handling complaints from staff and colleagues. While federal law establishes minimum protections, institutions may provide more.

Faculty need to participate in shaping such institutional policies to protect the ability of faculty to use a wide range of pedagogical tools and the ability of faculty and students to engage in the frank and open exchange of ideas. In 1996, a federal appellate court struck down the sexual harassment policy of San Bernardino Valley College because, in part, the "vague policy discourage[d] the exercise of first amendment freedoms" of faculty. Similarly, the U.S. Department of Education in 2001 reaffirmed its 1997 Title IX policy guidance in recognizing the need for institutions to "formulate, interpret, and apply [their] rules so as to protect academic freedom and free speech rights."

At the same time, academic freedom is not absolute. Various AAUP policies prohibit sexual harassment by professors, including the Statement on Professional Ethics, which stipulates that professors should "avoid any exploitation, harassment or discriminatory treatment of students."Both AAUP policy and judicial decisions further recognize that faculty members' classroom speech should be germane to the subject matter. In 2001 a federal appellate court upheld the suspension by Macomb Community College of John Bonnell, a professor of English, for creating a hostile learning environment. A female student alleged that Bonnell had repeatedly used lewd and graphic language. The court found the professor's vulgar language "not germane to the subject matter." It ruled that "[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student's right to learn in a hostile-free environment."

Faculty must not only understand campus policy, but also participate in its development and revisions to ensure sensitivity to the academic learning environment and workplace. Following are some suggestions on how to do that.

  1. Read your school's sexual harassment policy. Such policies are usually found in faculty handbooks or, if applicable, collective bargaining agreements.
  2. Understand your sexual harassment policy. How does one file complaints? What informal and formal procedures exist? How are requests for confidentiality treated? What about anonymous complaints? What happens if sexual harassment allegations arise during tenure review? What "indemnification" policy exists if you're sued while handling a sexual harassment complaint?
  3. Work with your institution's counsel, human resources director, and faculty senate to organize briefings for faculty about the campus policy. Sexual harassment seminars are often most effective if they are facilitated by faculty leaders. Presenters might include professors who have served on faculty committees that either worked on the harassment policy or participated in faculty hearings involving sexual harassment allegations. Sessions might be made part of a faculty senate session, a regular faculty meeting, new faculty orientation, department chair meetings, division gathering, or even a department meeting. A particular challenge is scheduling sessions to include all those with teaching responsibilities on campus, including part-time and adjunct faculty and, if appropriate, graduate and teaching assistants.
  4. Participate in your faculty senate or other governance bodies to shape and inform sexual harassment policies and procedures.

In the end, participation by faculty in shared governance is critical in working toward the elimination of sexual harassment on campus and the protection of academic freedom and free speech.

Donna Euben is AAUP counsel.