Conflicting Sex and Anti-Discrimination Training Legalities? FIRE Weighs In
Author: Sergei Kelley
While reviewing mandated sexual assault training material, The Morning Watch asked Michigan State University and the Foundation for Individual Rights in Education (FIRE) to clarify the training’s legality in relation to the First Amendment.
The training, Relationship Violence & Sexual Misconduct (RVSM), focuses on “communicating behavioral expectations” for all of MSU. Topics range from mandatory sexual assault reporting, Greek Life, and discrimination. It is run by MSU’s Prevention, Outreach, and Education Department (POE).
Two examples within the training were related to free speech and the First Amendment.
The first scenario, regarding “repeated negative comments” towards lesbians made by a student in a political science class, may create a “hostile environment.” Additionally, if the environment escalates, it “denies the targeted students’ equal access to educational programs or opportunities.”
“Threatening or intimidating comments targeted at a particular student are not protected by the First Amendment,” according to a screenshot of the example below.
Comments made towards certain identity groups like lesbians “generally do not qualify” as a violation, FIRE Legislative and Policy Director Joe Cohn told The Morning Watch. “Even if they're negative comments or are repeated, that doesn't itself create a true threat in terms of hostile environment.”
Such comments could fall under “actionable harassment” if they are directed at an individual and are “pervasive enough to effectively deny someone equal access to their education.”
In another scenario in the RVSM training, an economics professor uses “rape” to describe taxes. The training says “this one comment is not sexual harassment,” yet using rape “is inappropriate and hurtful to those who have experienced sexual assault.” See screenshots below.
FIRE agreed with MSU RVSM’s conclusion that using “rape” in that manner does not constitute sexual harassment. “Whether or not it's inappropriate and hurtful is somewhat subjective,” Cohn further told The Morning Watch.
In regards to the scenarios as a whole, FIRE Legislative and Policy Director Cohn said, “[they] have a lot [of] elements in them that...you can make multiple conclusions from so they're not really straightforward...they're just not quite legally accurate.”
MSU POE Executive Director Kelly Schweda told The Morning Watch in an email, “The training, taken as a whole, shows that speech or a particular expression that may be offensive is not, standing alone, sufficient basis to establish a violation of the policy.”
Further, Schweda referenced RVSM and Title IX policy, “it shall not be interpreted to abridge First Amendment rights or to infringe academic freedom. The protections of the First Amendment must be carefully considered in all complaints involving speech or expressive conduct.”
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