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Western Kentucky University

Sexual Harassment Training

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First Amendment Rights

 

Western Kentucky University is committed to providing an environment where all members of the campus community enjoy the rights of free speech as well as freedom from harassing or discriminating behaviors. In theory, academic freedom and freedom from harassment should not be competing values. In reality however, they sometimes conflict.

Freedom of expression and inquiry for all members of our community is not only a valued tradition at WKU, it is a right protected by the First Amendment of the U.S. Constitution which states that "Congress shall make no law. . . abridging the freedom of speech. . ."

First Amendment rights however are not boundless and should not be seen as a defense against all claims of harassment on campus. Sexual harassment or other behaviors in violation of federal or state anti-discrimination laws are not legally protected forms of expression.

Classrooms are settings for specifically defined purposes, not "public forums." As such, principles of academic freedom may not protect classroom speech that is unrelated to the subject matter of the course.

 

Academic Freedom or Sexual Harassment

In a pre-med class on communicable disease, the instructor graphically describes sex acts by which humans can transmit the AIDS virus, both heterosexually and homosexually. Some students are offended and complain, requesting the Dean to require the instructor to be less graphic in presenting this information.

Academic Freedom, Sexual Harassment or Not sure?

Academic Freedom or Sexual Harassment?
Academic Freedom. Faculty members not only have the freedom, but also the responsibility, to choose course material that will, in their opinion, best serve the objectives of the specific course.

Instructors also have an ethical obligation to respect the freedom, dignity and rights of students; however, they must not be constrained from presenting relevant course materials just because it may make some students uncomfortable.

 

Free Speech or Sexual Harassment

Martha is a foreign language instructor. She frequently uses her classroom as a forum to express her views that men should not be in the social service fields. She believes men are overly pre-occupied with sex and this leads them to be manipulative, competitive and aggressive - traits more suited to careers in commerce or politics than service. Besides expressing this view, she is known to taunt her male students with comments like, "If you'd pay more attention to my instruction and less time staring at Miss Riley's chest, you'd do better in this course."

Free Speech, Sexual Harassment, or Not sure?

Free Speech or Sexual Harassment?
Probably Sexual Harassment. Martha's "male-bashing" comments are not relevant to her course subject matter or to any relevant educational objectives so, in this case, the instructor's rights of academic freedom would not outweigh students' rights to a respectful, non-harassing environment.

Threatening and intimidating actions targeting a particular student or group of students, even though they contain elements of speech, are not protected by the First Amendment.

 

Free Speech or Sexual Harassment
In a creative writing class students are given an assignment to present an unpopular point of view using a popular medium. Duane writes an illustrated children's book to present the view that all women unconsciously want to be sexually victimized. Some students are very offended by Duane's presentation and file complaints of hostile environment sexual harassment.

Free Speech, Sexual Harassment, or Not sure?

Free Speech or Sexual Harassment?
Probably Free Speech. Offensive ideas, by themselves, are not harassment. The presentation was relevant to and within the scope of the assignment and the course objectives. OCR states that under Title IX "Academic discourse is protected by the First Amendment even if it is offensive to individuals."

Free speech rights apply to both faculty and students. It is unlikely that this single episode of offensive materials would be sufficiently serious to deny or limit the ability to participate in or benefit from the education program as judged by a "reasonable student" standard.

 

Free Speech or Sexual Harassment
Liz Harris, Yolanda's volleyball coach, makes frequent sexual remarks and advances toward her during practice sessions. Yolanda asks her to stop, but Coach Harris continues making verbal requests for sexual favors, though she makes no threats of reprisals if refused.

When Yolanda quits the team and files a complaint of sexual harassment, Harris contends that the volleyball court is her classroom and her rights of free speech protected her comments to Yolanda.

Free Speech, Sexual Harassment, or Not sure?

Free Speech or Sexual Harassment?
Sexual Harassment. Sexual harassment is not a legally protected form of expression. Liz's conduct toward Yolanda was unwelcome, of a sexual nature, and had the effect of denying Yolanda participation in the school's athletic program. This type of harassing behavior is a violation of trust and an abuse of authority; it undermines the educational process and compromises academic freedom and the integrity of the institution.

The school must take prompt action to end the harassment, prevent it from recurring, and remedy the effects of the harassment on Yolanda.

 

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 Last Modified 7/29/15