A national nonprofit organization dedicated to protecting free speech on college campuses dinged two Colorado universities over their sexual harassment policies, saying the schools’ definitions of harassment include constitutionally protected speech.
The Foundation for Individual Rights in Education, known as FIRE, on Wednesday published its annual report rating nearly 500 colleges around the country, including 14 public and private schools in Colorado.
Laura Beltz, the report’s lead author, read the institutions’ publicly available policies and graded the schools with a “red light,” “yellow light” or “green light” depending on “how much, if any, protected expression their written policies governing student conduct restrict.”
Most institutions — 63.9% — earned a yellow light, meaning their policies are written in a vague manner that could be interpreted as restrictive to free speech, Beltz said.
Two Colorado institutions, Adams State University in Alamosa and Fort Lewis College in Durango, both earned red lights for their sexual harassment policies, meaning Beltz found the policies to “clearly and substantially restrict free speech.”
“Both of these policies provide a definition of harassment that is broader than the Supreme Court’s legal standard for harassment,” Beltz said.
Leaders at Adams State University dispute their red rating.
Ken Marquez, vice president for student affairs, said FIRE took issue with Adams State’s sexual harassment policy a few years ago, prompting Adams State to re-write it in 2017 with the help of the Colorado Attorney General’s Office to be in compliance with FIRE.
“They give you no guidelines to say what you need to write to be a green policy, so we were just guessing and hoping we were hitting the marks,” Marquez said. “We felt we met their criteria.”
Adams State’s updated policy defines sexual harassment as “unwelcome conduct that is of a sexual nature or is based on a person’s actual or perceived sex, gender, sexual orientation, gender identity or gender expression. It can include unwelcome sexual advances, requests for sexual favors or other verbal, nonverbal or physical conduct of a sexual nature.”
FIRE said Adams State’s updated policy still earns the university a red rating.
“The policy is an example of the classic pitfall of a standalone ‘Blueprint’ definition for sexual harassment,” wrote Mary Zoeller, FIRE’s senior program officer of policy reform, in an email to The Denver Post.
Zoeller explained that the “Blueprint” definition of sexual harassment refers to a 2013 U.S. Department of Education letter that defined sexual harassment as “any unwelcome conduct of a sexual nature.”
“This definition is problematic for many reasons (namely that requires universities to prohibit constitutionally protected speech as ‘sexual harassment’) and led many colleges to change their policies for the worse in an attempt to comply with this misguided directive,” Zoeller wrote.
Beltz said that in the educational context, the Supreme Court defined harassment as behavior that is “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Adams State’s definition, Beltz said, could include punishable behavior that doesn’t meet the Supreme Court’s standard.
“Obviously, colleges need to protect and respond to students that have been sexually harassed, but when you have a definition this broad, it’s including protected speech,” Beltz said. “The way I like to describe it is if a student turns to another student in class and tells a single dirty joke, that’s probably not going to rise to the level of sexual harassment where a person can’t go to class again. But if that happened over and over and every time they went to class that student told a dirty joke, that is starting to sound like it’s pervasive and could be preventing that student from going to that class. When you have a policy that broad, it means both of those scenarios are punishable.”
An excerpt from Fort Lewis College’s sexual harassment policy that FIRE takes issue with is as follows: “Sexual harassment is defined as unwelcome conduct of a sexual nature, unwelcome sexual advances, requests for sexual favors and other visual, verbal or physical conduct of a sexual nature.”
Fort Lewis College spokeswoman Lauren Savage said the school “routinely reviews and updates all policies, especially those affected by changes in public policy, laws, court decisions and other evolving landscapes.”
FIRE believes freedom of speech is under “continuous threat” at colleges across the country, but leaders at many Colorado higher education institutions would disagree.
Last year, regents of the University of Colorado — which earned a “yellow” rating in FIRE’s report — unanimously approved policy changes redefining academic freedom and freedom of expression on the university’s four campuses.
Among the new policies: Faculty have the freedom to teach the truth as they understand it, subject only to the controls of the methods of establishing knowledge in their field.
The policy was a source of debate among the partisan board of regents, with some claiming conservative or libertarian students needed policies to make them feel more comfortable expressing their views on CU’s left-leaning Boulder campus.
The political nature of the national debate surrounding freedom of speech at universities has played out among the CU regents and administration, who agreed that campuses should promote the free exchange of ideas and opinions but disagreed as to whether anything was hindering free speech in the first place.
According to a 2015 Pew Research study, American millennials are “far more likely” than older generations to say the government should have the ability to prevent people from saying offensive statements about minority groups. The study found 40% of millennials thought the government should be able to prevent people from publicly making offensive statements to minority groups while 27% of Gen Xers and 24% of Boomers thought so.
Only one Colorado university, Gunnison’s Western Colorado University, earned a green light from FIRE, and Beltz noted that FIRE worked directly with that school’s administrators in 2014 to help craft their policies.
Marquez said it was frustrating when Adams State tried to reach out to FIRE to better craft its policy but was left trying to do so on its own.
“It’s important to have good sexual harassment policies,” Marquez said. “With all the standards the federal government is putting in place, it’s important to be allowing students the proper due processes. We wanted to make sure we wrote a policy that wasn’t violating students’ rights. When FIRE said our policy might violate some freedom of speech, we jumped on it to make sure we weren’t doing that for our students.”