In an effort to ensure that UCLA’s sexual harassment
policy complies with statutes that prohibit race and sex
discrimination, the administration has recently proposed a series
of changes that would update the university’s policy. But
some see the proposed revision as a threat to freedom of speech on
campus.
In addition to prohibiting unwanted physical contact, stalking
and sexual pressure, the proposed policy states that sexual
comments, display of graphic materials, and inappropriate letters,
calls and e-mails can be considered sexual harassment.
The policy says that while isolated comments do not constitute
sexual harassment unless they are extremely severe, speech that is
not related to course material or in violation of
anti-discrimination laws is not protected by academic freedom.
But one professor is calling these changes unconstitutional,
which is causing some to question the possibility of the policy
landing on Chancellor Albert Carnesale’s desk for review by
June.
Eugene Volokh, a UCLA law professor, registered his concern
about the proposed changes, calling the language vague, dangerous
and unconstitutional in a recent letter to the Academic
Senate’s Academic Freedom Committee.
Pamela Thomason, UCLA’s sexual harassment policy
coordinator, maintains the changes are meant to prevent
discrimination, not limit speech. She said the policy committee has
tried to make the policy fair and balanced, without imposing a
burden on free speech.
But while Volokh thinks the sections of the sexual harassment
policy that deal with physical conduct and sexual extortion should
remain in place, he sees the clause which restricts language as
“dangerously vague.”
The clause prohibits speech that is severe and pervasive enough
to create an offensive university environment, he said.
Volokh described the perils of broadly worded restrictions of
speech by noting that “hostile,”
“offensive,” “severe” and
“pervasive” are never defined, which could allow a wide
range of complaints. He asserted that a complaint against a student
or professor could be very harmful, regardless of its validity.
“Even if a student speaker is ultimately exonerated. …
Would he be willing to speak freely in the future? Would others who
hear of the incident be willing to take the risk?” Volokh
asked in his letter.
However, the authors of the policy’s changes feel that the
section prohibiting abusive speech is necessary to prevent
discrimination.
Thomason said the restrictions on severe and pervasive speech
are legitimate because they are derived directly from the Supreme
Court’s definition of sexual harassment, which was upheld as
recently as 1999 in Davis v. Monroe County Board of Education.
“In an ideal world it would be great to define them with
greater precision. But it is unrealistic when the court’s own
definition is vague,” Thomason said, adding that the revised
policy has narrower definitions of unacceptable speech than the
University’s previous policy.
Still, Volokh said, it is not necessary to restrict speech in
order to prevent inappropriate comments, because social pressures
and “counterspeech” will censure anyone who might be
out of line.
“You respond to someone’s bad ideas by spreading
better ideas,” Volokh said. “It’s more effective
to respond by showing how wrong someone’s ideas are than by
administratively punishing them.”
The Academic Freedom Committee, of which Volokh is a member, has
taken a similar position.
Phillip Bonacich, chair of the Academic Freedom Committee, sent
a memo to Carnesale, Ann Carlson, chairwoman of the University
Sexual Harassment Committee, and Thomason, saying the committee was
troubled by the attempt to restrict “verbal conduct … of a
sexual nature.”
Bonacich wrote that the proposed restrictions inhibit free
speech because they can be applied unpredictably.
The committee said it would support a sexual harassment policy
that would punish physical conduct, unwanted sexual approaches, and
speech such as threats, libel, obscenity and possibly
“fighting words,” which are not protected by the First
Amendment.
Thomason agreed that social pressure is preferable to
administrative punishment, and can be an important method of
controlling inappropriate behavior.
However, she pointed out that this system does not always
work.
“Unfortunately, when most people see (sexual harassment)
what they do is nothing,” Thomason said.
Carlson, who also has a hand in shaping the new policy,
concurs.
“Professor Volokh raises interesting questions about the
First Amendment, but doesn’t try to balance needs,”
Carlson said.
“The other need is for the university to be in compliance
with federal and state laws that require us to prevent sex
discrimination in educational and employment settings,” she
said.
Some professors share Volokh’s concern about the freedom
of speech.
“At first I was dubious, but now that I have learned more
I agree because you can’t dictate speech, even if it is
offensive,” said Cheryl Zimmer, an organismic biology,
ecology and evolution professor who sits on the Academic Freedom
Committee.
The next step will be for the review committee to evaluate
comments, like those from Professor Volokh and the Academic Freedom
Committee, and try to minimize conflicts with the First Amendment,
said Carlson.
“The answer can’t be simply to have no policy to
combat sexual harassment in the classroom,” Carlson said.
If revisions are made, the revised policy will be submitted to
the academic community for comment again. If no changes are made,
the committee will meet in June to submit the revised sexual
harassment policy to the chancellor, who will decide if it should
be approved.
The deadline for members of the academic community ““
including the Academic Senate ““ to comment on the possible
changes passed Monday.