That's not sexual harassment, that's freedom of speech!

In another case making inroads on the law of sexual harassment, the 9th Circuit Court of Appeals, which includes California, has ruled that the First Amendment protects offensive speech.

This case involved a college teacher and issues of academic freedom and freedom of speech under the First Amendment to the Constitution. These Constitutional principles apply to all government employees, but not to employees in the private sector. It will be interesting to see if the courts develop one standard of conduct in the private sector, and another for public employees.

In this case, the Court found that the instructor, Mr. Cohen, used "a confrontational teaching style designed to shock his students and make them think and write about controversial subjects. He assigns provocative essays such as Jonathan Swift's "A Modest Proposal" and discusses controversial subjects such as obscenity, cannibalism, and consensual sex with children. At times, Cohen uses vulgarities and profanity in the classroom and places substantial emphasis on topics of a sexual nature."

The Court held this was not sexual harassment to the female students (even when he would not allow them alternative assignments). But the Court did not go so far as to say this was protected free speech. It just held that the harassment policy was vague and could not reasonably be understood to apply to teaching methods used for many years.

Case Synopsis:

In this case, the College punished Cohen based on his teaching methods under the provision of the Policy which prohibits conduct which has the "effect of unreasonably interfering with an individual's academic performance or creating an intimidating, hostile, or offensive learning environment." Cohen, admittedly, uses a confrontational teaching style designed to shock his students and make them think and write about controversial subjects. He assigns provocative essays such as Jonathan Swift's "A Modest Proposal" and discusses controversial subjects such as obscenity, cannibalism, and consensual sex with children. At times, Cohen uses vulgarities and profanity in the classroom and places substantial emphasis on topics of a sexual nature.

We do not decide whether the College could punish speech of this nature if the Policy were more precisely construed by authoritative interpretive guidelines or if the College were to adopt a clearer and more precise policy. Rather, we hold that the Policy is simply too vague as applied to Cohen in this case. Cohen's speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy's nebulous outer reaches to punish teaching methods that Cohen had used for many years. Regardless of what the intentions of the officials of the College may have been, the consequences of their actions can best be described as a legalistic ambush. Cohen was simply without any notice that the Policy would be applied in such a way as to punish his longstanding teaching style -- a style which, until the College imposed punishment upon Cohen under the Policy, had apparently been considered pedagogically sound and within the bounds of teaching methodology permitted at the College.

COHEN v. SAN BERNARDINO VALLEY COLLEGE
(9th Cir., August 18, 1996, 96 C.D.O.S. 6145)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.