Even after a yearlong federal investigation into the University of Montana's beleaguered sexual harassment policy ended with the university acknowledging its past discrimination against women and improving its response system, Sen. John McCain (R-Ariz.) is still one of the many conservatives who believes the policy didn't need to be changed.
In a letter to Attorney General Eric Holder, McCain shows concern that "Assistant Attorney General Thomas Perez and a group of lawyers in [the Department of Justice's] Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding."
By "redefining ... sexual harassment," of course, he means ensuring that students who report harassment or assault are taken seriously, their cases reported to local authorities immediately following the initial report (instead of one week later), and actually training those to whom students report harassment to deal with such cases at all.
The university agreed to "take sufficient effective action to fully eliminate a hostile environment based on sex, prevent its recurrence, and address its effects."
So where's the problem?
McCain cites the Supreme Court case Davis v. Monroe County Board of Education (1999), in which the Court decided that sexual harassment must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." His concern with the Department of Justice lies in the fact that their "new" definition of sexual harassment is "any unwelcome conduct of a sexual nature," which apparently infringes on the First Amendment.
In short, McCain believes that sexual harassment has to get so bad that the student can't function at school before it is considered a reportable offense, and that the students responsible for creating an uncomfortable environment are justified in their actions because it's their constitutional right.
Objectively, that doesn't sound so bad — but when you have actual harassment victims coming in to report an incident, how does one determine what is "objectively offensive" and what isn't? Should there be a physical list of phrases or actions covered under the First Amendment, and cases are only considered harassment if they are on the list?
Also, "unwelcome conduct" is a purely subjective phrase, and it's possible the Department of Justice meant it that way. What one person considers "severe, pervasive, and objectively offensive" might be interpreted completely differently by another person, even among victims of harassment. This goes along with the University of Montana actually listening to people who report such acts — you have to take these victims seriously in order to make them feel comfortable.
Falling back onto "freedom of speech" to justify comments or actions that make someone uncomfortable is just an "objective" way of saying, "That's nice, but that doesn't sound so bad to us, so just get over it — it's in the Constitution."
The University of Montana admirably altered its policy after letting too many incidents slide — both harassment and assault — and this change alone should comfort those too scared to report prior incidents. Knowing someone is there to take your claims seriously and not engage in victim blaming, even if what the perpetrator did or said isn't against the law, is a welcome addition to the university's harassment policy. It's just a shame that certain people can't see the good coming out of this awful situation.