Regents Propose Removing “Purpose” from Harassment Policy

On Monday I looked at the Board of Regents’ draft revision/inflation of their free speech policy. Today, let’s look at the Regents’ proposed revision to their harassment policy.

One of seven draft policy revisions on their agenda for next week’s meeting in Rapid City, the changes to Policy 1:17, “Harassment including Sexual Harassment,” include this important amendment of what an accuser must show to establish harassment. The current policy says an accuser must prove conduct toward another person “that has the purpose or the effect of creating an objectively and subjectively intimidating, hostile or demeaning environment that substantially interferes with the individual’s ability to participate in or to realize the intended benefits of an institutional activity, employment or resource….” The only real revision that clause needs is the insertion of Oxford commas. The Regents ignore that need and offer this new definition of harassment:

Conduct toward another person that is severe or pervasive enough to create an objectively and subjectively intimidating, hostile or demeaning environment….

Perhaps there is some wisdom to removing “purpose,” since intent can be hard to prove. But the current policy connects purpose and effect with or, meaning that even if a victim can’t prove intent, a victim can still demonstrate actual impacts and prevail in a complaint.

The new verbage about “severe or pervasive enough” at worst appears to make it harder for victims to prove their claims, creating some new standard of severity or pervasiveness their harms must reach. At best, the new words are superfluous: the subsequent and unchanged language about “substantially interferes” already establishes a standard to prevent frivolous complaints. Absent other legal arguments, I suggest this first revision is unnecessary.

The proposed draft then strikes entirely from the definition of harassment, “Other conduct that is extreme and outrageous exceeding all bounds usually tolerated by polite society and that has the purpose or the substantial likelihood of interfering with another person’s ability to participate in or to realize the intended benefits of an institutional activity, employment or resource.” Under the above paradigm of concision, that edit may make sense by removing words already covered by the preceding clause about “substantially interferes.” “Conduct” surely includes “outrageous conduct,” so why have two clauses?

Both revisions appear to share the intent of removing “purpose” from complaints. However, the Regents would keep in policy a subsequent line under the discussion of Title IX action on sexual harassment that refers to reported conduct that doesn’t reach the level of harassment but is still “targeted at a specific person or persons, was abusive, and served no bona fide academic purpose.”