WND reported that the May 9 guidance from the U.S. Department of Education was understood to mean that every flirtation on a college campus in America and every request to go out on a date could be considered sexual harassment.
“We have always maintained that the civil rights laws OCR enforces must be interpreted in ways that are consistent with constitutionally protected First Amendment rights,” the office said.
“Furthermore,” the letter claimed, “as we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”
The letter was a response to the backlash from the Department of Education advisory to the University of Montana regarding sexual harassment cases. The department advisory apparently eliminated the standard of whether a “reasonable person” would consider certain actions harassment. It explained that any comment, action, insinuation or implication would be harassment if it was unwanted.
The advisory warned that the school’s sexual harassment policy “improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.”
The university policy held that “whether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.”
That standard is not acceptable, according to the advisory, signed by Anurima Bhargava, chief of the U.S. Department of Justice Civil Rights Division Educational Opportunities Section, and Gary Jackson, a region chief for the U.S. Department of Education.
“Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment,’” the advisory said.
Read the advisory.
The advisory was addressed to University of Montana President Royce Engstrom and university lawyer Lucy France. It was a “resolution” of an investigation into the sexual harassment climate at the school and its “compliance review” of officials’ actions.
“Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment,” the federal officials warned the state.
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