With A Handbook, Is Harrassment Adequately DefinedGuest column by Adam Dershowitz
When my copy of the new guide, "Dealing with Harassment at MIT" arrived, I thought that I might finally be able to understand what constitutes harassment. I could not have been more wrong. This document only goes to show what a clouded issue the administration has made harassment into, and goes on to demonstrate its complete lack of understanding of the First Amendment of the Constitution.
When a group of students chose to voice its opinion about the success of the many hours of work and the tens of thousands of dollar that must have been invested in this document by burning it, did the action "create an intimidating, hostile, or offensive educational, work, or living environment?" If so it was therefore harassment! If I had put that much work into something I would have been offended at having it burned, but then again, I would never admit to writing anything as silly as this guide, and in this case no one has put his name to the guide.
So what is harassment? After the definition, which includes anything that is intimidating, hostile, or offensive, and therefore virtually all speech that is charged, the guide says, "Finally, even though certain offensive speech may be protected as free speech<\f>.<\f>.<\f>." Ah ha! So there is some protected speech on campus, but what is it, how is it protected, and why? The guide explains that "freedom of expression is essential to the mission of a university. So is freedom from unreasonable and disruptive offense." The purpose of a university, as I understand it, is to foster the exchange of ideas, and to challenge people to think about different ideas. Some of these ideas may be very upsetting and offensive to the people in power (The earth is not the center of the universe? Woman should vote also?) and that is why they must be protected. But where did this so called right "to not be annoyed" come from, who recently granted it, and what does it mean?
There has never been a need to protect popular ideas. No one has ever been punished for expressing them. The First Amendment was written to protect unpopular, dangerous, or minority ideas. These ideas are what cause change. Along with that they often cause discomfort or hurt. Isn't the reason that pro-life people show pictures of fetuses because they want to offend, and make people think? Are they harassing the pro-choice people? Does their simple existence harass a woman who just had an abortion? Are the pro-choice people harassing the pro-life people by yelling back at them? I think that both sides of such a debate are intending to harass, and at the same time are fulfilling the purpose of a university by having an important, and heated, political debate and must not be punished. Where does this fit into the policy?
The guide sidesteps the issue of rights, "It is usually easier to deal with issues of free expression and harassment when members of the community think in terms of interests rather than rights." Well sometimes interests collide, and then it is necessary to understand your rights, and the guide does not address that. It specifically asks people, "to avoid putting these essential elements of our university to a balancing test." How else are people to know their rights? The policy itself attempts to test the right to free expression. It threatens to punish people for offending and therefore stifles speech. It uses an extremely broad definition of harassment, but the guide never discusses what forms of speech are protected, and thus contradict the policy. People should not be forced to test the limits of speech because it should not be banned in the first place.
The guide attempts to walk two sides of a line, on one hand attempting to legally say, "thou shall not say anything that might hurt anyone" and on the other hand saying, "Please, be nice to one another." It attempts to use both the carrot (that tastes bad) and the stick (that is broken) at the same time.
The contradiction between the harassment policy, and the constitution, is also demonstrated in the guide, "It may be `legal' to do many things that are not in one's interest." This suggests that you may be legally (i.e. constitutionally) protected from certain expressions that still violate the policy. In other words if MIT enforced the policy as it is written it would clearly be violating Massachusetts civil rights laws, and probably the Constitution. The policy must therefore be selectively enforced, although it also states that deans and other administrative officers, "are obligated to work to stop harassment if it is reported to them."
The guide also explains that, "MIT also is quite restrictive with respect to definition" of harassment. Since things must only create an offensive environment to constitute harassment, the guide also says, "however offensive behavior does not have to be found to constitute harassment in a formal proceeding for someone to take steps to get it to stop." While this sentence is confusing, my interpretation is that conduct that is offensive does not even have to be determined to be harassment for someone to be punished.
What if you are accused of harassment? The guide says the first thing to do is, "Be sure you understand the definition of harassment." I figure by that time anyone involved will have long been gone from the Institute. If you do finally understand it, then you should continue to read that paragraph, because it goes on to say that, "If your behavior has the effect of unreasonably offending or intimidating another person it may be harassment." (My emphasis) I thought that was harassment. In fact your actions and intent are not relevant, only the feelings of the complainant.
The next step is for the complainant, or the administration, to shop around for a forum that he or she likes best. The policy allows him to go from one to another bringing repeated charges until he find a forum that he likes. I know from personal experience, having won a case on free speech on campus, that later Samuel J. Keyser chose a different forum where he was judge, jury and executioner.
While the guide does make mention of free speech, it does so only in a meaningless way. It further makes this fundamental freedom sound insignificant. Universities have traditionally been places where censorship is fought and where the rights of individuals are expanded. Perhaps the administration should put some thought into granting rather than taking away civil rights. The whole method chosen to deal with harassment is misguided. There is a fundamental problem with a university administration trying to legislate personal relationships in order to force people, under threat of sanctions, to be kinder and gentler. I know that I find that this guide has created an "intimidating<\f>.<\f>.<\f>.<\f>and<\f>.<\f>.<\f>.<\f>offensive educational<\f>.<\f>.<\f>.<\f>environment," now if I could only figure out who to bring harassment charges against.