Read more of our articles on consent and sexual assault on U.S. college campuses here.

The U.S. Commission on Civil Rights, a bipartisan, independent agency responsible for investigating civil rights issues, held a briefing on Friday to discuss the effects of recent federal guidance on Title IX sexual harassment law in schools, and whether that guidance might come in conflict with the First Amendment. 

The hearing centered around the 2013 “Montana agreement,” a resolution reached between federal agencies and the University of Montana at Missoula after the university and local law enforcement were found to have failed to adequately address allegations of sexual assault and harassment. Failure to protect students from sexual violence and harassment is a violation of Title IX, a statute that protects students from gender-based discrimination, and violating Title IX puts schools in jeopardy of losing federal funding. 

The Montana agreement was only binding on the University of Montana at Missoula, but the U.S. Department of Justice (DOJ) and the U.S. Department of Education’s Office of Civil Rights (OCR) called it a “blueprint” and a model for other schools around the country. 

Some witnesses at the hearing were concerned that this “blueprint” broadened the definition of “sexual harassment” in a way that could infringe on free speech rights. Greg Lukianoff of the Foundation for Individual Rights in Education and Ada Meloy of the American Council on Education testified that the Montana agreement defined sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.” This definition, they claimed, is an alarmingly broad standard that could allow student discussion of gender roles or Lolita to be considered harassment.

However, the definition of sexual harassment used in the Montana agreement is not new, and not all potential acts of sexual harassment can trigger disciplinary measures. To violate Title IX, a school must fail to take “immediate effective action” against an offense it knew or should have known about, and that offense has to create a “hostile environment” for the victim that is “sufficiently serious to deny or limit the student’s ability to participate in or benefit from the program.” Hostile environments can be created either by severity or pervasiveness; that is, a single rape or sexual assault can be enough to create a hostile environment, but so can repeated incidents of unwelcome sexual advances or intimidation. 

DOJ and OCR officials clarified during the hearing that the definition of sexual harassment hasn’t been broadened. Rather, they said, the agencies criticized Missoula for “conflating the definitions of ‘sexual harassment’ and ‘hostile environment’” in a way that discouraged students from coming forward. It’s not the student’s job to determine whether their harassment created a hostile environment, said OCR principal deputy assistant secretary Seth Galanter, but the university’s. “You have to be open to all complaints, and then you have to figure out if it’s a hostile environment,” Galanter said. Because sexual harassment and assault are so severely underreported, Galanter said, it’s important to reduce barriers that discourage students from reporting. Moreover, a student’s subjective experience of offense isn’t enough to determine a hostile environment; “objective” measures of what a “reasonable person” would find offensive have to be considered as well as subjective factors. 

The Montana agreement also clarified that a “preponderance of the evidence” standard should be used in adjudicating sexual assault complaints, rather than a stricter “clear and convincing evidence” standard. About 80 percent of schools already use this standard, officials said. The National Women’s Law Center argues that the preponderance of the evidence standard is appropriate for sexual misconduct because of “the unique barriers that sexual harassment and violence complainants face,” and because universities aren’t able to find students guilty of a crime or a civil liability.

“Schools can take steps to meet their obligations under Title IX that are entirely consistent with the First Amendment,” said Fatima Goss Graves, National Women’s Law Center vice president for education and employment. “There is no constitutional right to be a bully.”