PC in LA - political correctness - lawsuit by Occidental College students in Los Angeles, California to fight the California Department of Education's Office of Civil Rights enforcement of sexual harassment policy that infringes on free speech

National Review, July 19, 1993 by Linda Seebach

LOS ANGELES

OUR undergraduates at Occidental College have launched a direct assault on a redoubt of political correctness. On June 19, they filed suit in federal district court in Los Angeles against the Office of Civil Rights of the Department of Education. The suit asks for an injunction to prevent OCR from compelling Oxy to enforce any policy that would infringe students' First Amendment rights to free expression.

The Eagle Rock College's sweeping sexual-harassment policy does infringe students' rights, as Oxy has already agreed. But the policy is unfortunately not particularly unusual. It's based in its essentials on the definition of sexual harassment dreamed up by the Equal Employment Opportunity Commission and imposed on innumerable colleges and businesses. So the implications of the lawsuit are equally sweeping.

Oxy's definition included the common-sense understanding of harassment as unwelcome sexual advances, physical contact, and the like, which no sensible person defends. But the definition also included "verbal conduct of a sexual nature when such conduct (including oral, written, or pictorial communication relating to gender or sexual orientation) has the purpose or effect of unreasonably interfering with an individual's work or educational performance, or of creating an intimidating, hostile, or offensive environment for work or learning."

The rule went even further, providing that speech could be punished if it offended third parties who were witnesses to it. And that's what happened to members of the Oxy chapter of Alpha Tau Omega fraternity. A private newsletter circulated to the chapter's 28 members included some vulgar doggerel, unsuccessfully intended to be funny, about a rape. Someone stole a copy of the newsletter and gave it to the campus newspaper, which published the offending verse.

WITHIN a week, 16 members of a college-trained group called Advocates Working Against Sexual Harassment signed a complaint against the fraternity. In addition to the newsletter, they objected to a "run" by members of the football team, during which some ATO members "mooned" the campus.

Campus feminists demanded that the fraternity and its members be punished. And they probably would have been, except for a new California law that took effect January 1 of this year. "It is the intent of the Legislature," said the bill sponsored by State Senator Bill Leonard (R., Upland), "that a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus."

The law applies to public and private colleges and universities, and to high schools as well, with a narrow exemption for institutions operated by religious organizations. It prohibits any policies that would punish students solely for speech or other constitutionally protected communication. And just to make sure that administrators pay attention, the law provides that institutions are liable for court costs and attorney's fees if a student sues them for violating his First Amendment rights and wins.

The law was passed nearly unanimously in both houses of the state legislature, in spite of determined opposition from college and university administrators, who seemed to feel they had some duty to restrict speech on their campuses.

Early in January, attorney John Howard of San Diego--director of the Individual Rights Project of the Center for the Study of Popular Culture, founded by David Horowitz and Peter Collier--acting for the fraternity members, informed President John Brooks Slaughter that Oxy's policy was in violation of the new law.

After receiving Howard's letter, the college prudently decided to postpone, indefinitely, any further action on ATO. But agitation on the campus didn't subside, and Howard decided he had to prevent the administration from caving in.

In March, he filed suit against the college, its trustees, several professors, and a student on behalf of the fraternity members. The suit asked damages for malicious prosecution, defamation, intentional infliction of emotional distress, and invasion of privacy.

On April 5, the college announced a settlement in which they agreed to revise their harassment policy and to take no disciplinary action against the fraternity or its members. The fraternity members, in turn, agreed not to engage in public nudity.

Oxy's press release noted it had to balance sometimes contradictory responsibilities. "We want to make it clear," said President Slaughter, "that both our respect for the the First Amendment and our resolve to create an environment free of sexual harassment remain unfettered."

Raise the curtain on Act II. The students who had brought the original charges were far from satisfied with that balance. They complained to the U.S. Department of Education's Office of Civil Rights, which opened an investigation into the college's failure to implement its harassment policy.

OCR's letter to the college, dated May 18, demanded (by June 3) an overwhelming volume of data. OCR wanted to see, for instance, complete documentation of every interview and letter pertaining to any allegation of sexual harassment--during the last three years! This excess is standard procedure, apparently. The letter is so much word-processed boilerplate that it inadvertently refers to a complaint against "Novato Unified School District (District)."