NEWS RELEASE

News Conference
Monday, June 30, 1997 at 11:00 a.m.
3209 West 5th Avenue, Vancouver, BC

The B.C. Civil Liberties Association will hold a news conference to release the details of its critique of Simon Fraser University's proposed new harassment policy. The BCCLA sees a number of serious problems in the new code. A brief detailing our concerns, and a news release, will be available at the news conference.

COMMENTS ON THE PROPOSED SIMON FRASER UNIVERSITY HARASSMENT POLICY

PART ONE - June, 1997

There are three distinct worries that arise from the draft revisions to the harassment policy (hereafter "the policy"). They are as follows:

1. Academic Freedom
The policy restricts expression within the University in a manner that is inconsistent with the principle of academic freedom. This principle should be interpreted broadly as applying to both faculty and students.

2. Social Fabric
The policy treats as actionable behaviours which form part of the normal social fabric of the University, as well as the community at large. Since the policy also regulates relations between students, students should be alerted to the fact that their ordinary interraction on campus will be affected by the policy in very significant ways. 

3. Procedural Justice
The policy provides inadequate protection for persons investigated under the harassment code. 
This installment of the BCCLA's comments considers substantive issues arising from the policy. Procedural and jurisdictional issues will form the basis for a subsequent discussion note from the BCCLA. It begins with a brief statement of the general principles which should inform a campus harassment policy.

I. GENERAL STATEMENT OF PRINCIPLES

It should be acknowledged that a test which captures behaviour that is genuinely harassing while excluding non-harassing behaviour is difficult to formulate. On account of this difficulty some attempt must be made to offer standards for interpreting a harassment policy. These standards should make explicit that:

1. There is an important difference between offending a person and harassing them. 
2. Giving offense to a member of the University community is by itself never sufficient grounds for harassment. 

It is neither possible nor desirable to ensure that persons are protected from offense in institutions of higher learning. Transforming Universities into "offensiveness free-zones" would undermine both their pedagogic and research missions. A basic aim of any test for harassment should then be to ensure that merely injuring a person's sensitivities or upsetting them does not constitute harassment. 

3. A congenial test holds that:

(i) Harassing behaviour must single out a person or group sufficiently to make that person or group identifiable as the target of harassment. 

(ii) Harassing behaviour must treat those persons in a manner which would cause a reasonable member of the University community to be unable to participate in the academic environment as an equal.

(iii) Barring some gross breach of ethics, there is a personal liberty enjoyed by faculty and students to pursue the investigation, research, teaching, and discussion of any subject matter of professional, or scholastic interest.

4. Many harassment policies stipulate that interpretation should rely on a "reasonable persons" standard. (This includes the SFU policy at 1.3.) This provision, while welcome, does not fully alleviate legitimate concerns. A "reasonable persons" standard helps ensure that highly idiosyncratic, personal reactions are not allowed to determine when harassment has occurred. But a "reasonable persons" standard is not a panacea. It remains a very vague notion. There is no substitute for making explicit in the policy's interpretive guidelines that: offense does not constitute harassment in and of itself, and that academic freedom is a sovereign value in the University. 

5. The above test for harassment would be unlikely to treat as harassment certain quid pro quo offers: for example, an offer to raise a student's grade for sex. This is because an offer to raise a student's grade does not normally pose obstacles to that particular student's participation in the University. It does, however, disadvantage other students. It is important to emphasize, therefore, that a harassment policy should be accompanied by a Code of Faculty Responsibilities and Ethics. An instructor who made such an offer would normally be in contravention of this Code. An instructor who, by contrast, threatened to lower a student's grade if the student did not comply with a demand for sex would likely be guilty under the harassment policy, and would also be in separate breach of their professional responsibilities. 

II. SUBSTANTIVE ISSUES ARISING FROM THE SFU DRAFT PROPOSAL

A. Interpretive Guidelines

1. In its interpretive guidelines (1.0), the SFU policy does mention the importance of academic freedom, but does so in a way which unduly qualifies and blunts the importance of this value.  

(i) The liberty to publish controversial material:

The definition offered for academic freedom at 1.0 omits reference to the liberty to publish controversial ideas. Surely, the right to publish research ought to be included in the commitment to academic freedom.

(ii) The liberties covered under academic freedom are limited by the requirement "that these activities are conducted in a mutually respectful... manner." (1.0) The concept of "mutual respect" is vague. It is not defined in the policy. On the common and ordinary understanding of this concept, however, many activities which constitute quintessential instances of the exercise of academic freedom are not mutually respectful. 

For example, the advocacy of Maoist communism or some other totalitarian system would normally be protected under the doctrine of academic freedom. But someone who advances these proposals —  who overlooks the horrible cost in human suffering associated with these totalitarian regimes —  must anticipate being replied to in terms which may fail to token respect. 

More generally, two professors or two students engaged in a heated exchange may legitimately call one another "immoral," "incompetent," "an ass," or "a charlatan." That is part and parcel of taking ideas seriously. The possibility for disagreement —  even sharp disagreement —  must be preserved in the University. Members of that community cannot have the threat of a harassment proceeding hanging over their heads on those occasions when they wish to denounce what they regard as a badly misguided point of view. These exchanges may prove offensive, but they would not normally constitute harassment.

Accordingly, the terminology of "mutual respect" should be dropped from the Guideline section because: 
(a) it constitutes an unwanted limitation on the doctrine of academic freedom, and (b) it is equally ill-suited for expressing the legitimate concerns of a harassment policy. 

B. The Definition Of Harassment 

1. The policy defines harassment as follows:

"Harassment is hostile or threatening behaviour which is inappropriate and unwanted and which would be considered by a reasonable person to create a negative environment for work, study, and other University-related activities." (4.0)

The portion of this test which refers to "a negative environment for work" is inadequate. The term "negative environment" is not defined in the policy. The way in which that term is interpreted will therefore be determined by the context in which it is found. The context in which the term occurs suggests strongly that it will be interpreted to include the creation of a merely offensive environment. 

2. One relevant context for interpretation is provided by section 4.0.f. Section 4.0.f states that harassment can include "the use of pornography, racist/sexist graffiti, or posters unrelated to any academic purpose."
This illustration combines both content and viewpoint-based restrictions. The restriction of pornography is content-based: it does not necessarily matter whether the material condones or is critical of pornography. The prohibition on racist or sexist speech is a viewpoint-based restriction. It is the condoning attitude contained in the materials which furnishes the basis for the proscription. 

(i) Disagreeable Content and Viewpoint Are Not Harassment: 

Speech should never be regarded as harassment simply on the basis of the viewpoint or the content which it expresses  —  however offensive that speech may be. It must also be shown that the expression in question does more than simply offend. Putting this point another way, the fact that expressive activity contains distasteful content or a distasteful viewpoint is never by itself enough to show that the expression is harassment. 

Section 4.0.f  adds the provision that the speech in question is "unrelated to any academic purpose." This clause raises interpretive problems of its own (cf. my II.B.2.(ii) below). But even speech which is unrelated to an academic purpose may not constitute harassment, despite its disagreeable content or viewpoint.

For example, suppose that an instructor or student is discovered hanging a racist or sexist poster on a public University bulletin board or alternatively, reading pornography in the cafeteria during his lunchbreak. The activity in question has no apparent academic value. Yet barring special circumstances this does not constitute harassment. In order for the expression to constitute harassment, there must be some further finding that these activities seriously impede the ability of persons to participate in the University community as equals. This burden is simply not met when, for example, a student encounters a distasteful poster on a bulletin board in a public thoroughfare, or a professor reading Hustler over lunch. So adding the expression "unrelated to an academic purpose" does not significantly address the serious reservations attending content and viewpoint-based restrictions. 

Expression that is harassment may often contain a disagreeable content or viewpoint. Or it may not. But something more than a finding of a sexist, racist, or pornographic content is needed for expression to be harassment. It must be made unequivocally clear that the offensive character of sexist or racist or pornographic expression do not suffice to certify that expression as harassment.

(ii) Problems In Interpreting "Academic Purpose" In Light Of The Compromised Standard For Academic Freedom:

Faculty are advised (in an accompanying letter by the draft policy's framer) that faculty will have the right to display pornography in classrooms. The framers's presumption seems to be that such displays fall safely under the "academic purpose" proviso (4.0.f).

But that is just not clear. The basic question is, how will the phrase "unrelated to any academic purpose" be interpreted? More specifically, will it be interpreted in a narrow or generous fashion. 

Contextual factors suggest a narrow reading of what constitutes an academic purpose. First, the principle of academic freedom has already been diluted by the provision that the expressive activities protected under that principle must be "mutually respectful" (1.0). Second, content and viewpoint-based restrictions are provided for in the policy's illustrations. (Compare the policy's 4.1.d.)

Suppose then that in the course of answering a pointed question, a professor adopts a tone that fails to token respect, and furthermore relies on pornography or some racist or sexist text to illustrate his point. Some may consider the use of these materials gratuitous in that particular context. But unless there are very special complications, this expression should be protected under the principle of academic freedom. It needs to be emphasized that whether it would be protected under the policy is very unclear. Moreover, the intentions of the policy's framers will have little probative value once the draft is adopted. 

(iii) A Double Standard for Students:

Even if it is given a generously broad interpretation, the "academic purpose" proviso will leave many basic forms of expression unprotected. One important consequence is that a significant double standard will be created where the rights of faculty and students are concerned. This double standard arises for the following reason. Not all speech at universities that is important speech takes place in formal classroom settings. Students, in particular, may have to rely on nontraditional forums —  including the student pub, the cafeterias, posters, internet postings, and the like —  in order to get their point of view across. There is simply no reason given in the policy for supposing that this speech will be deemed related to an "academic purpose." Indeed, as 4.0.f currently reads, it would suggest that if two students are discussing the issue of pornography or its difference from art in the University pub, and one student unravels a centerfold from among his papers, for purposes of illustration, he may be guilty of harassment. It is certainly part of a student's education —  perhaps the most vital part —  that they be permitted to express and exchange controversial ideas in informal settings. Students seem especially vulnerable in this respect. This is because there is often no clear line between academic inquiry and socializing in many student activities. The policy states explicitly that "harassment may occur between people of the same or different status within the university community" (at 4.2). There need be no imbalance of power involved. The policy applies with equal force to students. The policy poses a significant threat to these activities. 

(iv) Vagueness: 
The grounds presented for limiting speech in section 4.0, and 4.0.f are extremely imprecise. There are no definitions or useful guidelines for the interpretation of critical terms, such as "pornography," "racist" or "sexist," or "academic purpose." The standard is consequently subject to enormous abuses of interpretation.

It is a general precept of liberty of expression jurisprudence that vagueness is a grounds for eliminating a restriction on expression. This is because vague rules have the effect of chilling more speech than they may appear to. The explanation is that individuals, who have no idea about how the vague provisions will be interpreted, are likely to err on the side of caution. The inevitable consequence is that speech will be subject to far greater self-censorship than may seem apparent from a simple reading of the rule.
Freedom from censorship is of the utmost importance in the University environment. The prospect of this chill penetrating informal gatherings and the classroom is a cause for concern.  

In sum, considerations of vagueness, reservations about the artificiality of a distinction within the University between speech with an "academic purpose" and speech that lacks it, and the inappropriateness of content and viewpoint-based restrictions all suggest the need for revisions to section 4. 

C. Sexual Harassment

Section 4.1 holds that, "Sexual harassment is defined as unwanted sexual attention, sexual solicitation, or other sexually oriented remarks or behaviours, made by a person who knows or ought reasonably to know that such attention or solicitation is unwanted."

1. The Impact Of This Definition On Normal Social Relationships

(i) The Problem Of An Overly Broad Definition:

This definition of sexual harassment is overly broad. One problem with an overly broad definition of the sort given under the policy that it takes behaviours which form a normal part of the social fabric of the University, and transforms them into serious offenses that potentially carry serious penalties and stigma. 
For example, suppose that a student or faculty member asks some other student or faculty member out for a date. Suppose further that the individual making the offer knows that the offer's recipient currently has a partner. As it happens, the sexual attention is unwanted. We may judge further that it would be reasonable for the person making the offer to realize that the attention is unwanted. Someone who makes such an offer may be unsavory. But barring additional complications —  for example, egregious persistence, or a threat to abuse power —  it is clear that this does not constitute sexual harassment. Yet it is behaviour which satisfies the test created by the policy's definition at 4.1.

In consequence, the policy risks undermining the formation of the close personal relationships which form an important part of the University experience. Students seem especially vulnerable in this respect. To reiterate, there is often no clear line between academic inquiry and socializing in many student activities. In short, under its present wording, the test for sexual harassment conflicts with social behaviour that is both widespread, and not normally regarded as an actionable offense.

(ii) The Piecemeal Enforcement Invited By Overly Broad Definitions Is Highly Prejudicial: 
It is equally clear that a University tribunal could not enforce what the policy's test regards as sexual harassment. Such enforcement would either overtax the University's resources, or would lead to a general student rebellion, or both.

It is a well-established precept of jurisprudence that laws which restrict activities that are widespread, and which can only be enforced in a piecemeal fashion, may be struck down. The rationale for this precept is straightforward. If most members of a community engage in the proscribed behaviours, then what enforcement there is is apt to be discriminatory. The law will be used against those who have made enemies, have left favors unreturned, or as a general tool or intimidation. 

2. The Impact Of The Definition For Sexual Harassment On Academic Freedom

(i) The Definition Of Sexual Harassment Provides Even Less Protection For Expression Than The Test For Harassment: 

(a) Reliance On A Subjective Standard

The definition for sexual harassment drops the objective requirements found in the definition for harassment. Section 4.0 stipulates that the activity must "be considered by a reasonable person to create a negative environment." It states further that the behaviour must be inappropriate and hostile or threatening. There is potentially some fact of the matter regarding whether behaviour is inappropriate or threatening. There is equally some potential fact of the matter regarding whether a reasonable person would find the environment negative. (To reiterate, a negative environment test is nonetheless inappropriate.)

In place of this objective standard, 4.1 substitutes a purely subjective test: whether "sexual attention, sexual solicitation, or other sexually oriented remarks or behaviours" are unwanted.

The test is subjective in at least two ways. First, the idea of a "sexually oriented remark" has no stable referent in the way that threatening or hostile behaviour does have a marginally clearer referent. The concept of a "sexually oriented remark" is vaporous.

Second, the test in 4.1 eliminates the reasonable person requirement that is found in 4.0. No rationale is given for this asymmetry. It also makes the test in 4.1 inconsistent with the principle articulated in 1.3. For 1.3, an interpretive provision, holds that a reasonable person standard will be used to determine whether harassment has occurred.

(The objective component of 4.1 imposes a reasonable person standard on the harasser. This has the function of eliminating the requirement for intent. This is not necessarily objectionable.)

(b) The Elimination Of The Need For Sexual Harassment To Single Out A Person or Group 

The definition of harassment at 4.0 requires harassing behaviour to be hostile of threatening. This may imply that the behaviour would be directed to an identifiable group or individual, or single them out in some way. (An explicit provision of the kind as given in I.3.1 above would be better.) By contrast, holding that "sexually oriented remarks or behaviours" are harassment if they are known to be unwanted eliminates the requirement that the target be in some sense singled out. Sexually oriented remarks and behaviours need not be directed at anybody or single them out. 

The importance of (a) and (b) is that sexual harassment as defined under the policy bears scarce resemblance to genuine sexual harassment. The definition furthermore embraces much expression that would normally be protected under the principle of academic freedom.

For example, the discussion of much fine art and literature often occasions "sexually oriented remarks." These remarks can be uttered in a classroom setting or simply be overheard in a hallway, or the cafeteria. Displaying a Mapplethorpe print on an office wall or in a lecture may constitute sexual behaviour. The venue is immaterial from the standpoint of the policy's test. A reasonable person may also safely presume that at least some students will find contact with these remarks and behaviours unwanted. But that is all that is required for a finding of sexual harassment in these cases. The remarks or behaviours need not be directed in any way towards a student (c.f. II.C.2.(i)b). Nor must the complainant be reasonable in claiming that the exposure is unwanted (c.f. II.C.2.(i)a). 

An appeal to the policy's interpretive guidelines, and its academic freedom provision in particular, will not alleviate the problem. Not all discussion of art and literature is carried out in duly respectful tones. This suggests once again that contrary to the stated intentions of the framers, the policy may not permit the use or mention of pornographic materials in the classroom.

But even if the academic freedom provision were suitably repaired, this definition for sexual harassment would be inadequate. It has the potential to chill much speech and behaviour which occurs outside of a narrow academic context. Students seem especially vulnerable in this respect since, to reiterate, there is often no clear line between academic inquiry and socializing in many student activities.

(ii) Problems with Viewpoint and Content-Based Restrictions:
Section 4.1.d includes as examples of sexual harassment "suggestive or demeaning remarks, jokes or other types of verbal abuse of a sexual or sexist nature directed at an individual or group." 
 

(a) The reference to expressions of a "sexist nature" raises the difficulties with content and viewpoint-based restrictions that were discussed above (in II.B.2.(i)). To reiterate, neither the content or the viewpoint of speech is enough to show that the expression constitutes harassment. The further provision offered in 4.1, that the speech be "unwanted," scarcely improves matters.

(b) The problems that beset the policy's 4.1.d are further compounded by the dropping of the "academic purpose" provision mentioned in 4.0.f of the policy.

This makes it difficult to reconcile 4.1.d and 4.0.f. The sense of 4.1.d is that even if a sexist statement is centrally connected to an "academic purpose," this provides no protection whatsoever for that expression; while, 4.0.f does give protection to speech related to an "academic purpose."

No attempt is made to explain why sexist speech does not give rise to a charge of ordinary harassment, when it is related to an "academic purpose," but may nonetheless give rise to charge of sexual harassment. This significantly waters down the principle of academic freedom. Instructors receive some protection from content and viewpoint-based restriction where simple "harassment" is concerned. But they remain exposed to charges of "sexual harassment" even when their expression is connected to a legitimate "academic purpose."

In sum, the difficulties with section 4.1 are significant. The test for sexual harassment encroaches significantly on the principle of academic freedom, and equally upon the normal social fabric of the University. Any serious attempt to enforce these measures has the potential for wreaking havoc. The fact that these provisions will not be enforced in a general fashion should give no cause for reassurance. For it suggests that these provisions will be applied in a piecemeal and discriminatory manner.

D: CONCLUDING REMARKS

A natural reaction to the criticisms that have here been raised, along with the examples used to illustrate them, is that no reasonable adjudicator would ever interpret a harassment policy in this uncharitable and vindictive fashion. Yet while this reaction is natural, it also overlooks much that is worth reflecting on. First, it should be remembered that the penalties and stigma to which a determination of guilt under this policy gives rise are potentially very stiff. They may be no less onerous than the penalties imposed by the state in a criminal proceeding. In fact, they may often be more considerable: as the respect of colleagues, friends, and students are factored into the balance. When rules governing penalties of this magnitude are drawn up, enormous care must be taken. A person who is subject to these rules should not be asked to put his or her trust in the charity or evenhandedness of the trier of fact. Some adjudicators will indeed be wise and judicious. But others will not. Confronted with penalties of this importance no person's fate should be made to depend excessively upon the vagaries of an adjudicator's disposition: whether they are racist or vengeful, inept, or simply dislike the look on someone's face.

Second, it must not be forgotten that vague or poorly drafted rules end up regulating far more behaviour than is apparent on their face. When penalties are stiff, people must err on the side caution. The censorship and restrictions which anxious persons impose upon themselves are inevitably more profound and far reaching than what may be inferred from the vaguely drawn rules. 

There are certainly occasions where verbal abuse and physical trespass constitute harassment and sexual harassment. No university should allow harassment to go on with impunity. But any reasonable person who has thought about these issues will comprehend the difficulties involved in formulating tests or definitions which select these harassing behaviours while excluding the rest. It is possible that there is no test which would always yield verdicts with which we are comfortable.  This difficulty can be somewhat alleviated by including clear guidelines for the interpretation of a policy's provisions. The general principles, which form the underlying basis for the policy, must accordingly be made explicit. Basic principles, such as a commitment to the elimination of genuine harassment, the protection of (genuine) academic freedom, and the difference between harassment and mere offense, should be included as a guide for the community, the policy's initial interpreters, and as a basis for appeal.

Yet even the inclusion of these interpretive guidelines is likely to fail in ensuring that all genuine harassment is proscribed and all innocent behaviour is not. This is just a sad fact of life. Confronted with this sad fact, the framers of the draft revision have settled on definitions and illustrations which err significantly on the side of over-regulation. More appropriate standards would err —  if they must err at all —  on the opposite side. They would not seek to protect all persons from the risk of suffering even mild forms of harassment at the cost of transforming ordinary features of the University's social life into offenses. Nor would they imperil the principles of academic freedom and liberty of discussion which are vital to the University. It is better that some are offended —  and regrettably perhaps even more than offended —  than that the mission of the University is compromised. The risk that a few rogues will evade justice is a cost that the members of free societies have traditionally borne in exchange for the preservation of their liberties. 

[Part Two of this brief is still under development]