When the issue came before the Supreme Court in Davis v. Monroe County Board of Education, the Court held that schools could be liable for peer to peer harassment under Title IX, but only if it was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
If this sounds vaguely, but not exactly, familiar, it’s because disingenuous advocates have misstated it. They changed the conjunctive to the disjunctive and then promoted the notion that any one of these criteria, watered down again by rhetorical gamesmanship, would suffice. As it involves harassment, it primarily implicated speech, as conduct was characterized by its criminal nature, assault or rape.
And what organization was out there to defend speech, to defend against the false characterization of law to reduce the burden to punish speech? It’s not the ACLU.
But the American Civil Liberties Union has “grave concerns” that the bill is still too weak to be effective. It narrowly defines sexual harassment as actions that are “severe or pervasive” and requires that such harassment be “unwanted” (suggesting an alleged harasser could defend himself by claiming “she wanted it”). It lets lawmakers hide past discrimination settlements they’ve paid for with taxpayer money. It does not provide legal representation to accusers, a measure that was included in a similar House-passed bill.
The bill in question refers to Congress, which is quite a smart strategic move. Who doesn’t hate Congress? It’s always easiest to screw with the law when you’ve got a despised villain. But the concept being diminished is the definition of sexual harassment. Cue Niemöller.
The ACLU sent a letter to express its view:
In Meritor Savings Bank v Vinson, 477 U.S. 57 (1986), the Supreme Court defined actionable sexual harassment as harassment that “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Unfortunately, courts’ narrow interpretations of that legal standard have transformed it into a significant barrier for survivors of workplace sexual harassment and a “get out of jail free” pass for perpetrators. This bill unnecessarily codifies that standard and uses it to limit the scope of the reimbursement obligation. That language should be removed.
Moreover, the phrase “unwelcome harassment” should be removed; harassment is never welcome.
In other words, the “severe or pervasive” standard, in the disjunctive and without the additional criterion of “objectively offensive” that means that someone with their own peculiar sensitivities can’t feel harassed by whatever objectively innocuous word makes pain swell in their bosom, leaves the definition entirely in the hands of the “survivor.” No one would ever have a clue what words they might utter that would constitute harassment, as it would be left entirely to the sensibilities of the most fragile accuser to decide what constitutes her lived experience of offense.
As an aside, the contention that “unwelcome harassment” is terrible phrasing is correct, as harassment is never welcome. But that’s a matter of bad writing, not a wrongheaded concept. If a women tells a dirty joke and gets a dirty joke of the same ilk in return, does she get to use it to accuse the teller of harassment? The point is not to strip context from occurrence, but then, that’s also where reasonableness comes in, and the ACLU wants none of that.
Without limitations, every romantic advance, every questionable joke, every politically incorrect utterance and, well, every utterance, could constitute harassment. The mindless would reply, if you don’t want to be accused of harassment, don’t harass, which would be a fine answer but for the fact that anything can be harassment if someone wants to claim it is.
The definition inherently implicates limits on free speech even though it doesn’t fall within any category of unprotected speech. Once the definition is watered down generally, the perception of harassment in all arenas, Title IX as well as Title VII, as well as penal statutes, will follow suit. And who’s going to stand up to defend free speech? The ACLU isn’t making cricket sounds by failing to defend free speech, but it’s actively leading the charge against it.