It was 100 years ago, in 1915, that the founder of conceptual art Marcel Duchamp left his native France to live in New York City. He was 28 years old, alone, and dependent on friends, but a short time after his arrival he “created” works that changed art forever. His idea was to take an everyday object like a bicycle wheel, a snow shovel, or even a bathroom fixture, simply designate it as a work of art, and place it in a gallery or enter it in an art show. This approach annoyed and offended many and was dismissed by most as a prank, but his works impressed radical artistic groups at the time. Duchamp retired from the art world several years later to try to become a professional chess champion. But even when he stopped making “art,” his reputation grew with each passing decade. Fifty years later in the early 1960’s, Andy Warhol was thought to be inspired by Duchamp in creating his signature artwork: meticulous paintings of everyday commercial objects like Campbell’s soup cans.
The legacy of these types of artists today, in 2015, is the widely accepted notion among the public that art has to be shocking and novel to make any difference, and that art will benefit from clashing outrageously with applicable standards and rules.
For College and University administrators, human resources managers, and officials charged with compliance with Title IX of the Education Amendments of 1972 (“Title IX”) (20 U.S.C. section 1681 et seq.), this notion can present unique challenges. What if a student creates art as part of a classroom project that has such graphically sexual content that it generates a Title IX complaint from a fellow student? What if the art denigrates a group on the basis of gender, sexual orientation, or other protected classification, again to the point at which a fellow student complains? What if a student produces and publicizes a poem, story, or other piece of artistic expression that reveals a romantic longing for a classmate, which turns out to be very unwelcome?
The federal government, through the Department of Education’s Office for Civil Rights (“OCR”), has made clear that it will not tolerate conduct on campus that deprives students of access to an education on the basis of sex, including sexual harassment that is sufficiently severe to fall within the scope of Title IX. At the same time, Courts have vigorously applied the First Amendment to protect the free expression rights of students in public colleges and universities. Courts will readily point out that the First Amendment protection, as part of the U.S. Constitution, can override even federal laws like Title IX.
Probably the most famous recent example of this quandary is Columbia University’s having to contend with the 2014-2015 “mattress protest” by undergraduate art student Emma Sulkowicz. She claimed to have been the victim of sexual assault by a fellow student. When a College disciplinary panel declined to find that the accused student violated the College’s sexual misconduct policy, Ms. Sulkowicz began carrying with her every time she was on campus a dorm room mattress that was representative of the one on which she was allegedly assaulted. Her plan was to carry the mattress until her alleged assailant was no longer a student at the College. An art department faculty member officially approved the activity, and Columbia authorized Sulkowicz to conduct the protest for academic credit.
In declining to interfere with the mattress protest, Columbia was honoring the free expression rights of one its students, declining to intrude upon the academic freedom rights of its faculty member who approved the project, demonstrated its own willingness to accept criticism, and was host to an art project that generated controversy but also gained widespread national praise. Yet it nevertheless now faces a federal lawsuit by the exonerated student, who claims that Columbia, in allowing the mattress protest and giving academic credit for it, caused him to be defamed, and created an environment on campus for him that was so harsh that his own Title IX rights against sex discrimination were violated. A District Court Judge in the Southern District of New York will soon decide the extent to which the lawsuit will withstand a motion to dismiss.
The intersection of Title IX and student expression can present complex scenarios for colleges and universities, with considerable legal down sides. The following are some practical tips for how to address these scenarios. The first two are proactive steps that will provide system-wide benefits before situations arise.
- Insure that harassment and Title IX procedures comply with First Amendment requirements.
A review of existing procedures, including student codes of conduct, can help stop disciplinary proceedings from running afoul of free expression standards. Some colleges and universities have harassment policies and codes of conduct that – even if well-meaning – prohibit too much speech. One example is a sexual harassment policy that contains overly broad definitions of what speech it includes, for example “inappropriate” or “denigrating” language relating to sexual matters. This type of language is potentially broad enough to encompass speech that would normally not be considered harassment and that instead would traditionally be considered constitutionally protected. Another example is a “bullying” policy that, among other things, contains a prohibition on simply “offending” anyone.
Moreover, in California, it is not just public educators that must insure that policies comply with constitutional free speech principles. By statute, private universities must do so as well, insofar as the policies apply to students. In California, Education Code section 94367 provides certain statutory free speech protections to students in private colleges and universities.
- Insure that harassment procedures comply with the most recent guidance on Title IX.
The harassment procedures of the institution should be thoroughly checked for compliance with current Title IX standards. For example, the OCR has described that under Title IX, educational institutions must establish policies and procedures, including written grievance procedures that provide a “prompt and equitable” resolution of student and employee complaints; that designate an employee who will serve as Title IX coordinator; and that require all “responsible employees” to report sexual misconduct to the Title IX Coordinator. A “responsible employee” is defined as a person authorized to take action to redress sexual misconduct, a person who has a duty to report such misconduct, or a person a student reasonably believes has such authority. Under OCR guidance, investigations of alleged conduct must be prompt, adequate, reliable, and impartial, and the institution must take satisfactory remedial actions to address claims of sexual misconduct, including investigating complaints, implementing interim protective measures, and taking necessary disciplinary action. The institution must also take necessary affirmative steps to prevent future reoccurrence. The OCR has provided guidance – in its 2014 Questions and Answers on Title IX and Sexual Violence document and in other publications including “Dear Colleague” letters – to be applied in numerous particular scenarios. A Title IX audit by counsel can help bring an institution’s processes into compliance with OCR’s expectations.
- Recognize that many instances of “shock art” and supposed harassment based on art projects will not violate Title IX.
In a time of increased vigilance toward Title IX issues, alarms may sound more readily over an art project or other work of expression that has harsh or inflammatory content. Nevertheless, even setting aside concerns of the First Amendment and academic freedom, there is a good chance that the artwork in question will not create a situation that calls for discipline or remedial action under Title IX. The standard for liability under Title IX, and state law, does not encompass merely offending other students, or making some students uncomfortable. Instead, for there to be liability of the institution under Title IX, the student “must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.” This is the standard articulated by the U.S. Supreme Court in its 1999 Davis v. Monroe County Board of Education decision. There is a good chance that a single student art project that shocks fellow students will not to meet this test, and as a secondary result will likely not trigger the need to discipline under the institution’s policies meant to safeguard against Title IX violations.
- Take account of what is and is not protected by the First Amendment and academic freedom — for example, Defamation is not.
For student speech, much of what a student submits in the classroom will have some level of protection. Generally, faculty may freely grade submissions, applying their professional judgment and curricular standards. As to student discipline, however, Courts will more strenuously apply free speech principles, and it benefits administrators to be alert to them. Defamation, including libel and slander, is not constitutionally protected. Defamation is generally considered a publication of fact, rather than pure opinion, which is false and has a natural tendency to injure or causes special damage; it can create legal liability if other requirements are met. Obscenity is also not protected by the First Amendment. The test for what constitutes obscenity takes into account “whether the work taken as a whole lacks serious literary, artistic, [or] political . . . value.” In addition, as a general matter, student speech that gives rise to a sufficiently serious threat of substantial disruption of or material interference with school activities can be the subject of discipline, consistent with constitutional standards. Importantly, student speech that creates a sufficiently serious threat of violence can warrant discipline notwithstanding First Amendment considerations. For example, the 2013 Ninth Circuit case Wynar v. Douglas County School District upholds discipline in the public high school context for a student’s speech regarding his engaging in on-campus violence.
Finally, administrators should be aware that California Education Code section 66301 provides certain free speech protections to students in public institutions, in addition to those conferred by the First Amendment, and this statute may need to be considered as well.
In conclusion, it is widely acknowledged that particularly in the realm of work by beginning artists, “shock” value has had a respected place based on at least a hundred years of tradition. The job for college and university administrators is to ascertain where lines are drawn with regard to free speech protections, and with regard to the mandates of prohibitions on harassment based on sex, so that administrators can ultimately make sound judgments.