Faculty: Sexual Harassment Policy Approved by Feds ‘Orwellian’

University of Montana faculty questions requirement that those who skip training be reported to feds

University of Montana / Wikimedia Commons
October 2, 2013

Faculty members expressed alarm at new sexual harassment policies at the University of Montana approved by the Departments of Justice and Education.

Of special concern is a requirement that those professors who fail to complete training are being reported to the federal government.

Faculty members questioned exactly what information the university felt obliged to report to the DOJ and asked how the agency plans to use the information in a letter to University of Montana President Royce Engstrom, the Missoulian reported last week. They also asked what additional information the university would provide to the DOJ if the agency asked follow-up questions.

The Foundation for Individual Rights in Education criticized the new "unconstitutional" policy and the DOJ’s request for a list of faculty names.

"Not only has the federal government approved an unconstitutional speech code, it has demanded a list of the names of faculty members who don’t attend a training session about it," said FIRE President Greg Lukianoff in a statement.

"The history of government officials’ compiling lists of dissenters is not a happy one," said Lukianoff.

Requests for comment from the DOJ were met with the following response: "Due to a lapse in appropriation, messages received at this address will not be read or responded to until funding has been restored."

Several faculty members relayed their concerns in phone interviews.

"The reporting of names of faculty to the DOJ, I think it’s monstrous," said Stewart Justman, a faculty member at the university and a program director of the humanities department. It "clearly smacks of McCarthyism."

Justman emphasized that he was speaking for himself and not representing others in his department.

He said he has many concerns with the new policy and has written three letters to the university administration. One response he received from Legal Counsel Lucy France did not assuage his concerns. Instead, she had a "conciliatory dialogue in her communications to me."

According to Justman, the faculty was unaware that the settlement with the Feds was reached.

"The settlement was reached in complete secrecy, I had no idea. The first I knew of it, it was a done deal. Now my university is bound by this agreement," Justman said.

"It tramples on the most basic principle of due process in many ways," Justman said. He called the policy "completely Orwellian" and said that "basic due process of liberty was jeopardized in every step of this process."

Among his many concerns is "anyone who reports a complaint is a ‘victim.’ It is clearly a presumption of guilt. It’s a pernicious assumption."

Michael Mayer, a history professor at the university and a member of the Executive Committee of the Senate, said while the new policy is an improvement on the one issued in May, it still has major issues.

The new policy states the university may take "appropriate action" against a student or faculty member to "prevent the creation of a hostile environment" even if an investigation by the university fails to find the student or faculty member responsible for "discrimination or harassment that creates a hostile environment."

"What they clearly are anticipating is taking action against someone who hasn’t committed sexual harassment," Mayer said. "If someone’s innocent, they still could face action," he said, adding that it is "pretty frightening."

He said the new policy shows a "disregard for civil liberties and academic freedom."

Justman said this is "but one in a series of affronts to the presumption of innocence, standards of evidence and norms of due process that have made their way into draft policy and procedure documents, to be fought one by one by vigilant staff."

FIRE criticized the new policy.

"Students and faculty may face discipline even if they are cleared of harassment and discrimination charges. Couple these flaws with broad, vague definitions, and the result is that UM has vast discretion to silence students and faculty members, to the detriment of fairness, clarity, and free speech," said Lukianoff.

Mayer also pointed out that students are required to take the tutorial, and they will be reported to the DOJ whether they comply or not.

"Everyone, the left, right, and center, says this is a bad idea," said Mayer. "The sense of the country is this isn’t a good idea."

Peggy Kuhr, vice president for Integrated Communications at the university spoke to the concerns of faculty that they will be reported to the DOJ.

"The president has heard those faculty concerns and is well aware of them, and he is responding. We are actively working with the DOJ, the Office of Civil Rights, and the faculty to address their concerns," she said.

Kuhr indicated that no decisions have been made.

"I have no particulars at this point," she said. She reiterated that the university president is "very aware of the concerns" of the faculty members and is working to address them.

She referred questions on the policy itself to France.

France did not respond to a request for comment.

The original policy introduced in May defined sexual harassment as "any unwelcome conduct of sexual nature" and would include "verbal" conduct.

After months of criticism, the new policy adopted by the university in August was less strict. It states, "sexual harassment can include unwelcome: sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, including sexual assault."