Any verbal conduct of a sexual nature that any listener finds unwelcome is sexual harassment
The Justice Department is telling universities that they have the obligation to investigate and prevent even individual instances of:
saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures, or written materials”
making “unwelcome” sexual invitations, and likely
making sexist statements that some listeners or readers find “unwelcome.”
This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such speech of a “sexual nature,” under the government’s approach, would be “sexual harassment,” and would have to be investigated when a complaint is filed, and prevented for the future. And the same logic, if accepted, will likewise extend to racially themed speech that some people find offensive, plus probably also anti-gay speech and the like.
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