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What to do about sexual harassment on campus has troubled higher education leaders for decades. The courts and regulatory authorities have clearly stated that institutions must develop and implement clear policies that prohibit unlawful harassment and provide a procedure for harassment complaints. Once a complaint is received, the institution is responsible for investigating and taking appropriate action to stop future misconduct.
When the accused harasser is an instructor, additional factors must be considered. For example, instructors may have particular due process rights associated with their status or, depending on the nature of the allegations, an interest in academic freedom or free speech rights that may be breached by the institution's response to the complaint. Recent guidance from the United States Departments of Justice and Education direct institutions to be aggressive in encouraging victims to report harassment and to take decisive action to ensure that no further harassment occurs, even before the investigation is concluded and guilt is assessed. Institutions are concerned that this regulatory pressure goes too far and exposes institutions to liability for infringing the rights of accused instructors.
This study examines litigation in the federal appeals courts from 1993-2013 involving lawsuits filed by harassment victims and accused higher education instructors. The study evaluates institutional responsibilities to victims and accused instructors as reflected in 58 different appellate decisions for the purpose of answering two research questions:
1. How have courts responded to lawsuits against colleges and universities brought by alleged victims claiming that they were harassed by instructors?
2. How have courts responded to lawsuits alleging that colleges and universities have infringed on the rights of instructors who have been accused of sexual harassment?
The litigation environment was relatively consistent in overall frequency during the study's time frame. Given the small fraction of cases that ever reach the court of appeals, it is apparent that sexual harassment litigation remains a frequently litigated subject.
Cases involving some aspect of the institution's response to harassment complaints or retaliation for complaining about harassment were by far the most frequently litigated issues in victim cases. Lawsuits by faculty most often alleged violations of free speech rights or due process shortcomings. Institutions prevailed in a significant majority of all the cases indicating that they had a good understanding of the rights of the parties on both sides of these disputes.
The study concludes with a discussion that highlights the lessons learned from the court rulings, some recommendations for policy and practice, and consideration of the dilemmas presented by the recent federal guidance for colleges and universities.