Carol Simpson Stern is a professor in the Department of Performance Studies at Northwestern University and past president of the American Association of University Professors. The author wishes to emphasize that the opinions expressed here are her own and not those of the university or the AAUP.
From The Chronicle of Higher Education
Issue dated March 10, 1993
Posted: chronicle.com/che-data/articles.dir/articles-39.dir/issue-27.dir/27b00101.htm
Copyright © 1993 by The Chronicle of Higher Education.
Posted here with permisison of the author and of The Chronicle for Higher Education.
College administrators recently have been working aggressively to develop guidelines for dealing with sexual harassment to insure a non-discriminatory, non-hostile educational environment. The new guidelines and codes are, in part, a response to evidence of a disturbing amount of sexual harassment on campuses. Colleges' concerns have intensified in the aftermath of the Supreme Court's ruling last year in Franklin v. Gwinett County Public Schools, which allows victims of intentional sexual harassment to sue for damages under Title IX of the Education Amendments of 1972.
The heightened consciousness of harassment is all to the good, but we must be careful not to write bad policies or rely unduly on detailed regulations authorizing sanctions against individuals as the means to cure our ills. Some recent campus guidelines reach beyond conduct in their efforts to protect women from harassment, putting at risk academic freedom and rights to privacy. For example, the wording of some codes designed to bar unwelcome sexist remarks could cause trouble for a faculty member who lectures on theories of racial or sexual inferiority.
The academic freedom to teach is chilled when professors are afraid to discuss topics related to sexuality lest they be accused of sexist attitudes or verbally seductive behavior. Freedom of inquiry and the right to discuss any ideas, no matter how hateful, are essential conditions of academic freedom. Probably the best way to end this society's sexism is not to stifle its expression but to stimulate discussion about it, answering bad speech with more speech.
I believe, as does the American Association of University Professors, that universities do not need separate codes or mechanisms to handle complaints of sexual harassment. Most institutions already have statements on ethics and on the responsibilities of faculty and staff members; adding specific statements about sexual harassment to already existing documents and procedures often is all that is needed. (If institutions do not have policy statements on unprofessional conduct that state that intimidation and harassment are inconsistent with academic freedom, whether the behavior is based on sex, race, religious, or political grounds, then they should develop such a statement.)
Besides their policies concerning ethics and professional behavior, institutions have grievance procedures and appeal bodies to judge allegations of misconduct. If administrators turned to these mechanisms rather than devising a new set of rules, often lamentably deficient in due process, we would be better off.
Sexual harassment is best addressed in the context of an institution's educational mission. When faculty and staff members are involved, harassment should be viewed as a question of professional ethics and responsibility. Meaningful discussion of these problems by faculty and staff members is long overdue.
Faculty members and other college employees of both sexes need to examine our cultural messages about sexuality and the status of women. They need to discuss what constitutes harassment, since people can hold vastly differing opinions about what that term means. Without wider faculty and staff involvement, it is unlikely that the actions of the courts alone or the promulgation of more guidelines proscribing conduct and verbal acts will bring the changes we need.
Let us look at some of the problems arising as a result of recent regulations.
The phrases "verbal and physical conduct of a sexual nature" and "hostile or offensive work environment," which are used in the Equal Employment Opportunity Commission's definition of sexual harassment, are dangerously vague and over-broad. Many academic policies have followed this language without considering the pitfalls. It is all too obvious, for example, that such language has the potential to chill artistic expression. Many incidents already have been reported on campuses in which students or institutions have censored artistic expression, removing artworks or banning alleged pornography, in the name of protecting students from a "hostile" environment.
Institutions should restrict their definition of sexual harassment to conduct. The emphasis on verbal harassment that is present in most policies chills speech. It is true that it is often difficult to determine when someone has crossed the line between speech and conduct -- when speech becomes conduct. However, recent court decisions striking down some university speech codes have demonstrated the dangers of attempting to proscribe speech, even of the most provocative kind.
Many of the outrageous incidents reported on campuses could have been handled under regulations that did not require college officials to punish speech. Ugly, sexually harassing statements often arise in situations where a faculty member or student is under the influence of either drink or drugs. This kind of conduct is already susceptible to discipline under existing standards of professional behavior or under regulations governing student life. Faculty members under the influence of drugs or drink can be punished without reaching to the content of their speech. Harassment, whether sexual, political, or personal, is a form of misconduct and should be treated as such.
Educators also should not encourage the idea that the mere fact that someone "feels" harassed means that they have been harassed. Such fuzzy thought stifles effective teaching. Some students have interpreted discussion of homosexuality as a kind of "cruising" behavior or a discussion of the erotic as a Don Juan behavior, in each case concluding that it constituted harassment. If teachers have to worry about whether a vulnerable student might misinterpret a discussion of race or sexuality, their speech will be chilled and they will be likely to lose perspective, treating students not as equals but as children.
It also is very important to differentiate between physical contact and sexual contact when determining whether conduct is wrongful harassment. This is particularly important in fine-arts disciplines such as dance, voice, and theater, in which the body is the instrument. It may be impossible for faculty members to teach certain techniques without touching their students. Teachers of voice often press on a student's diaphragm in order to demonstrate diaphragmatic breathing; a teacher of dance may place the student's leg or body in a particular position, to give the student the bodily feel of the correct alignment. Acting teachers and directors may touch performers as they move them about the stage to get the proper visual image.
Most of us are aware of how easily certain kinds of behavior can be misconstrued as harassment, with dire consequences for the accused. Some cases that have resulted in the dismissal of faculty members have been built upon such "wrongful" behaviors as hugging a student in a recital hall after a performance when other teachers and students are also offering congratulatory hugs; touching a student in the midriff area during a vocal lesson; being too familiar when directing an acting scene.
Contrary to what many books on harassment say, it is important to understand the intention behind an act in order to determine whether it is appropriate or inappropriate. Recent studies on harassment contend that we need not inquire into the intention behind an act, but this has very dangerous implications. If a faculty member hugs a student who is weeping about a grade and the gesture is meant to be comforting, not harassing, surely the teacher's motive matters to an interpretation of the act.
Another worry stemming from the zeal for regulation is the adverse impact that sexual-harassment codes may be having upon homosexuals. Although empirical studies have suggested that only 5 per cent of sexual-harassment cases involve homosexuals, gay-rights activists and other faculty members and administrators believe that homosexual professors accused of harassment are dismissed or asked to resign far more often than male harassers in heterosexual encounters.
Homosexuals are far less able than women to get a fair hearing from their peers or in court. Homophobia, like sexism, is deeply rooted in our society. Many members of gay and lesbian academic caucuses are skeptical that gay faculty members accused of harassment can get a fair hearing in the current climate.
Yet another set of difficulties arises when campuses adopt codes that extend the reach of sexual harassment to include consensual romantic or sexual relationships between faculty members and students. These codes either warn professors that they will be held accountable if a complaint arises or they explicitly ban such relationships. Such policies imply that it is not possible to have a consensual relationship within a context of unequal power.
Faculty members at several universities have rejected attempts to bar consensual romantic relationships between faculty members and students, arguing that such relationships are private and that barring them is overly intrusive and may violate people's rights of association and of privacy. Some feminists balk at the idea that consenting woman students should be barred from entering into romantic or sexual relationships with their professors.
However, romantic relationships between faculty members and students have been known to lead to some of the worst abuses of students. A professor who is sexually involved with a student is not sufficiently disinterested to be able to make fair judgments about grades, assistantships, or academic or financial awards. When the romantic attachment goes awry, the student often feels that she or he has been treated unfairly and may leave the discipline or the institution.
Faculty members need to hold themselves to a high professional standard and avoid such intimacy, not because of Puritan ideas about sexuality or because their student consensual partner is subordinate to them in power, but because the relationship poses a professional conflict of interest, making it difficult, if not impossible, to carry out their role as educators.
Whatever kind of policy or code a campus decides to use, given the very private nature of sexual harassment, it is essential that the due-process rights of both the complainant and the faculty or staff member be protected when a complaint is made. Sometimes these cases are managed in total disregard of due process and fairness; complainants may be provided with an advocate while the accused faculty member is denied either an academic adviser or legal counsel.
Charges of sexual harassment are frequently cloaked in secrecy; many accusers are promised confidentiality. Cases may be handled quietly in a dean's or provost's office, resulting in a forced resignation or dismissal. The accused fear publicity and tend to distrust the peer-review system. Some cases are taken up by faculty unions and heard by arbitrators, but, in too many instances, dismissals come swiftly and silently. Whether they are deserved is never tested.
Colleges and universities face many difficulties in trying to balance the need to rid higher education of sexual harassment while preserving the fundamental mission of the academy -- to educate and do research. Most faculty members have been slow to take these issues seriously, but administrators cannot carry on this task alone. It is time to encourage robust discussion of sexual harassment so that broadly representative campus groups can formulate effective rules and procedures to root out the behaviors that most reasonable persons -- women and men -- would agree are inappropriate. [END]