McCain Challenges DOJ’s Redefinition of Sexual Harassment

Senator says using settlement to change policy ‘troublesome’
John McCain / AP

John McCain / AP


Sen. John McCain (R., Ariz.) is challenging the Department of Justice over its broadened definition of sexual harassment on campuses and questioned the agency’s authority to act without congressional authorization.

McCain sent a letter to Attorney General Eric Holder Wednesday challenging its recent decision to redefine sexual harassment as “any unwelcome conduct of a sexual nature.”

“It is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ—through a settlement—rather than through congressional or regulatory action,” McCain wrote.

He also stated that Assistant Attorney General Thomas Perez and the DOJ “have used a settlement to effectively change the law, avoiding public accountability for their actions.”

McCain is referring to a May 9 settlement letter to the University of Montana from the DOJ and Department of Education, on which the Washington Free Beacon previously reported, that redefined sexual harassment to include verbal conduct.

McCain’s letter comes on the heels of mounting criticism of the DOJ and the DOE decision.

The nonpartisan group, the Foundation for Individual Rights in Education, has taken the lead in criticizing the agencies’ decision and has previously called on the government to retract its May 9 letter.

“FIRE shares Sen. McCain’s concerns about the Departments of Justice and Education’s apparent attempt to promulgate new Title IV and Title IX requirements without following standard rulemaking procedures,” Will Creeley, FIRE’s director of legal and public advocacy, said in an email statement to the Free Beacon.

“Because the Departments of Justice and Education proclaimed the University of Montana settlement agreement to be a ‘blueprint for colleges through the country,’ it is obvious that they intend every institution receiving federal funding to implement the deeply troubling definition of sexual harassment announcement in that blueprint,” Creeley said.

The DOJ did not respond to a request for comment by the Free Beacon.

McCain’s letter requests a response from the DOJ by July 17. Aside from questioning the DOJ’s authority to revise Title IX through a settlement with the University of Montana instead of by “judicial, regulatory or legislative means,” the senator also questioned how the broadened definition could “increase the risk of a wrongful conviction.”

The senator also spelled out six different scenarios to the DOJ and asked if they could constitute an “unwelcome conduct of a sexual nature.” They include a student asking another student out on a date; a student giving another a Valentine’s Day card; and also a student listening to music that includes sexual content.

FIRE’s senior vice president Robert Shibley said, “We are grateful to Sen. McCain for posting these crucially important questions to the Department of Justice. We urge the DOJ to retract this indefensible and unconstitutional threat to free expression and academic freedom on our nation’s college campuses.”

The DOJ and DOE attempted to walk back their May 9 letter last month, as previously reported, but critics said their efforts raised more questions than they answered. The DOE’s Office of Civil Rights claimed its original letter to the university was “entirely consistent with the First Amendment and did not create any new or broader definition of unlawful sexual harassment under Title IX or Title IV.”

They also claimed that the “regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”

However, FIRE previously said the explanation letter contradicted its original May 9 letter, and called for a complete retraction of its May 9 letter.

Get the news that matters most to you, delivered straight to your inbox daily.

Register today!