UCLA law professor Eugene Volokh, a specialist in First Amendment jurisprudence, notes (on the indispensable Volokh Conspiracy blog) that the OCR-DOJ’s proscriptions are “not limited to material that a reasonable person would find offensive.” The Supreme Court has held that for speech or conduct in schools to lead to a successful sexual harassment lawsuit, it must be sufficiently severe and pervasive to create a hostile environment. And it must be “objectively offensive” to a reasonable person. But, Volokh notes, the OCR-DOJ rules would mandate punishment for any individual’s “conduct of a sexual nature,” conduct “verbal, nonverbal or physical,” that is not objectively offensive to a normal person. This means any conduct “unwelcome” by anyone.
Greg Lukianoff, president of the Foundation for Individual Rights in Education, says a single hypersensitive person could declare herself sexually harassed because she considers “unwelcome” a classroom lecture on the novel “Lolita” or a campus performance of “The Vagina Monologues.” Do not even attempt a sex education class.
Wendy Kaminer, a civil liberties lawyer who writes for the Atlantic, traces the pedigree of the OCR-DOJ thinking to the attempt by some feminists in the 1980s to define pornography as a form of sexual assault and hence a civil rights violation. Volokh, too, believes that the government is blurring the distinction between physical assaults and “sexually themed” speech in order to justify censoring and punishing the latter.