Hundreds of students at the University of Texas participated in a campus carry protest on Wednesday, with many carrying sex toys donated by local merchants to protest the concealed carry of firearms on campus. As one student organizer of the protest said, “The dildos will stay as long as the guns are here. So if you’re uncomfortable with my dildo, you cannot imagine how uncomfortable I am with your gun.”
But, according to both their own university and the U.S. Department of Education’s Office for Civil Rights, every one of yesterday’s dildo-brandishing protesters is almost certainly guilty of sexual harassment. Ridiculous? Yes. But also true.
In a 2013 letter that it called “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” the Office for Civil Rights used a dubious interpretation of Title IX to require that colleges define sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct” (that is, speech).
That’s right: According to the Department of Education, this protest was also sexual harassment. Waving a detailed replica of a penis around while yelling “Cocks Not Glocks” certainly counts as verbal conduct of a sexual nature, and surely at least one of UT’s more than 50,000 students must have found this speech unwelcome.
Despite protests from civil liberties groups like the Foundation for Individual Rights in Education (FIRE, where I work), the Office for Civil Rights has stuck to this wildly overbroad definition, most recently in an April letter to the University of New Mexico.
UT’s policies fare little better. The university defines sexual harassment generally as “(u)nwelcome conduct of a sexual nature,” though it does limit this to conduct aimed at “a specific individual” that creates a “hostile or offensive atmosphere.” That means that any student with whom the protesters argued on Wednesday could claim to be a victim of harassment under the policy, which specifically lists “exposure to sexually suggestive visual displays” as a potential trouble spot.
The university does attempt to pay lip service to the First Amendment by applying its policy only to expression “not necessary to an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea.” But given that the public display of sex toys is hardly “necessary” to argue against guns on campus — people argue against the issue in other ways all the time — this provision will do little to help any student protesters accused of sexual harassment.
Regardless of one’s feelings on the merits of guns on campus or this form of protest against them, the idea that these protesters are sexual harassers is absurd. Creative protests are part of college life. But should some offended UT student complain to the university or to the Office for Civil Rights, either would have little choice but to take those complaints seriously and open some kind of investigation.
Not only would this be a waste of time and resources that could be used to address real sexual harassment, any investigation is sure to create a chilling effect over free speech and the right to protest on UT’s campus.
Both the Office for Civil Rights and UT have repeatedly ignored the First Amendment implications of their policies. One hopes that it won’t take the embarrassing debacle that an investigation into these student protestors would undoubtedly become to convince these organizations to get serious about ensuring that their policies address real sexual harassment while respecting students’ constitutional rights.
Shibley is the executive director of the Foundation for Individual Rights in Education.