1595 Mass. Ave. 112 Wyeth Hall Cambridge, MA 02138 Judge Alex Kozinski Ninth Circuit Court of Appeals Dear Judge Kozinski: In the past year, hundreds of public school systems and private colleges have adopted speech codes reminiscent of those struck down by the federal courts at state universities. Academic freedom has become but a fond memory in many institutions, where students can now be punished for virtually any comment that offends a listener, including statements on controversial issues relating to gender, sexuality, religion, and affirmative action. I want you to know that the opinion you joined in Ellison v. Brady (1991) has been repeatedly invoked to support the most Orwellian of these speech codes, both to justify punishment for isolated "offensive" statements and to justify applying radically different standards of conduct to members of ideologically trendy minorities (i.e. women, blacks, gays, etc.) than to "majority" group members. For example, at M.I.T., the administration has enacted policies against "racist behavior" and "sexual harassment" which punish students for any speech, political or not, which offends a "reasonable" member of the "affected" group i.e. the "reasonable women"/"reasonable African American"/"reasonable gay man/ lesbian" standard. Students can be punished for a single "sexist remark" or instance of "racist verbal behavior," making discussion of political issues like gender-based psychological and sexual differences, rape-shield laws, sexually-oriented art, affirmative action, or sexual morality, perilous for student speakers. When my brother, an M.I.T. student, protested the policy as an infringement of free speech speech rights secured by the First Amendment and guaranteed against interference by private colleges in Massachusetts by the Massachusetts Civil Rights Act, an administrator cited Ellison to justify M.I.T.'s speech code, claiming that such censorship was necessary to comply with Title IX of the Civil Rights Act, although case-law suggests that anti-discrimination laws may not constitutionally require Universities to regulate students' speech. See, e.g., UWM Post v. Board of Regents of the University of Wisconsin System (1991) (holding that the hostile environment theory that undergirds workplace sexual harassment law is not applicable in a public forum such as a university). Although many state criminal laws have historically held that speech is not harassment unless it reflects ill-intent, students are now being punished by educational institutions for political speech that is not only well-meaning but even reasonable, because you and other judges have made harassment under the Civil Rights laws a strict-liability offense defined by the perceptions of members of groups of which the speaker is not a member. No matter how reasonably a student tries to behave, he can be punished, because "reasonableness" is assessed not from his perspective, but from the perspective of the hypothetical "reasonable" member of the affected group, who is usually invested by campus administrators with the features of the most politically radical member of the "affected" group. Administrators have defined the "reasonable woman" to be a radical feminist offended by any expression of male sexuality, requiring men to keep their sexuality in the closet to avoid any chance of a disciplinary inquisition. At M.I.T., asking your classmate out on a date is a punishable offense if she says no, constituting an "unwanted sexual advance" in violation of M.I.T.'s harassment policy. At Harvard College, the Spring 1992 report of the Date Rape Task Force of Harvard and Radcliffe Colleges calls for punishment of males for any "unwanted sexual conduct" or "comment". As defined by current Harvard College policy, "Sexual harassment...can be as subtle as an off-color sexual joke that creates an intimidating or offensive learning environment," according to the October 1991 edition of the Balloon, the inhouse newspaper for Harvard staff. Ellison provides a gloss of legitimacy to these policies by suggesting that male sexuality may be suppressed merely because of the subjective connotations it carries in the minds of some women. In Ellison, Judge Beezer, in footnote 9, approvingly quotes a claim by a feminist legal theorist that "Because of the inequality and coercion with which it is associated in the minds of so many women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience." Implicit in this statement is the idea that a shy, decent man who badly needs sexual validation can be condemned to silence about his own sexuality simply because some female peer considers it an affront to her dignity in the "setting of ostensible equality" that universities are required to be under Title IX of the Civil Rights Act. Ellison is explicitly invoked in Harvard Law School's proposed sexual harassment policy, which permits a student to be punished even for the sexual jokes or comments he utters in his own dorm room; the policy states that the same standards will apply to sexual comments made in the deeply private living quarters of the dorms, where students engage in sexual relations and discuss the most intimate details of their lives, as to the desexualized office environment staffed by Harvard employees. The "reasonable man"/"reasonable woman" standard you enunciated in Ellison has proven on college campuses to be a powerful source of administrative arbitrariness. Largely female sexual harassment hearing officers routinely punish male students for speech which they themselves engage in, because the "reasonable woman/ man" dichotomy ensures that a policy maker of one gender will not have to live under the standard of behavior mandated for members of the opposite gender. For example, Harvard administrators have permitted radical feminists to label all men rapists in Harvard-funded publications, and female columnists discuss even their masturbatory habits in school newspapers (see Alysse MacIntyre's editorials in the Harvard Law Record), yet any statement perceived as having "sexual overtones" can subject a male student to punishment in many divisions of Harvard University. Disciplinary hearing officers tend to be radical feminists themselves: for example, College of Arts & Sciences sexual harassment hearing officer Janet Viggiani wrote the report of the Date Rape Task Force, which seeks to redefine as rape all consensual sex that occurs without a verbal request by the man and an explicit "yes" by the woman. If a couple has sex together without prior discussion, or engages in sexual relations after sharing a glass of wine, Viggiani considers the male to have raped the female. Bader, "Privacy under Siege", Harvard Salient, October 26, 1992; letter by Civil Liberties Union at Harvard, Harvard Crimson, November 7). Viggiani's rape defintion is currently pending before the Faculty Council, which will probably reject it. In the school system in which I grew up, the Howard County Public Schools, a single "derogatory comment", "unwanted sexual comment" or "unwanted sexual advance" violates the rules of a newly-enacted sexual harassment code. An unwanted "sexual comment" could include expressing dissenting views in sex education class, or complimenting the appearance of a classmate in a way that most students would find flattering. According to School Board Chairwoman Deborah Kendig, asking your classmate out on a date might constitute an "unwanted sexual advance" in violation of the policy. Since boys, rather than girls, are responsible for initiating relationships in American culture, the onerous speech restrictions in the School System policy have a disparate impact upon boys, forcing them to run a gauntlet of censorship and sexual humiliation when they seek a romantic partner. In essence, the policy stigmatizes male adolescents on the basis of their sexuality. The school system has also adopted a speech code called the "Educational and Personal Rights" policy, which subjects students to discipline for making any "statement" which is perceived as "demeaning" to any person on the basis of race, gender, sexual orientation, religion, disability, etc., even if the statements are made as part of classroom debate and do not reflect any demeaning intent. Repeat violators are subject to mandatory psychological counseling in a fashion reminiscent of Soviet psychiatry. Students discussing human sexuality or genderbased differences, evangelical Christians decrying homosexuality, and others may be silenced by school administrators under the guise of fighting "harassment." The school system believes that it is required to adopt such a policy if it is to avoid liability for "harassment" under Title IX of the Civil Rights Act. Ellison implicitly bolsters these overbroad educational speech codes by implying that even a single instance of speech can violate Federal Civil Rights laws. Federal cases like Ellison were invoked by the school system's lawyer, who drafted the policy, for the proposition that a boy's intent is irrelevant, and that he may be punished for a single statement. ("A single act may be enough..."). Some school board members were disturbed by the sweeping breadth of the proposed speech regulations, but they adopted them anyway, because they were terrified of being sued by the families of offended students, and the school system's lawyer could offer them little guidance on what constitutes a "hostile environment" in a court of law. Better to censor than be sued, the Board Members implicitly concluded. The "reasonable man"/"reasonable woman" standard is flawed in part because separate standards are inherently unequal, as dissenters to the Supreme Court's "separate but equal" standard for segregation noted in Plessy v. Ferguson. If an advocate or judge does not have to live under the disciplinary standard she imposes on the other gender, disciplinary standards run an increased risk of being unduly harsh on the other gender. Since the feminists who developed the concept of the hostile environment are not men, the bifurcated "reasonable woman"/"reasonable man" gives them an incentive to depict the "reasonable woman" as being offended by behavior which is only marginally offensive, if at all, to women, since women will still be able to engage in that very behavior declared offlimits for men when they engage in sexual interaction, since their sexual interaction with men is regulated by the more lenient "reasonable man" standard. Thus, the "reasonable woman" standard denies men and women equal free speech rights, since women are permitted to engage in forms of expression without fear of disciplinary reprisal, while men can be punished for engaging in the very sorts of behavior indulged in by the women surrounding them. The "reasonable man"/"reasonable women" standard purports in part to recognize the greater likelihood women face of sexual assault. In essence, it holds men collectively guilty of rape, saying that because a tiny minority of men engage in sexually violent behavior, the innocent majority of men must suffer a reduction in their freedom to express themselves. It is unjust to make a shy, decent man live in fear of disciplinary reprisals for his every word, merely because a criminal who shares only his gender happens to engage in predatory behavior. Most robberies in this country (62 percent) are perpetrated by black men, Judge Kozinski. Yet no one would dare suggest that the free speech rights of a black pedestrian should be less than that of white pedestrian, on the basis of his skin color, simply because a larger minority of black men commit crimes than whites. Separate "reasonable white"/ "reasonable black" standards would clearly be unconstitutional. Why, then, do you permit sexual stereotyping to dictate a different "reasonable man"/ "reasonable woman" standard for men and women that effectively results in men having less freedom to express their feelings towards women than women do towards men? The standard you and Judge Beezer enunciated is sexually discriminatory. Moreover, it is the gender of the accused, not the complainant, which is relevant for determining the probability of sexual assault. A "reasonable man" has a much reason to fear assault from another man who has repeatedly made advances towards him as does a "resaonable woman" facing repeated sexual advances by a man towards her. Nowhere is the rape rate higher than among prison detainees, where large, predatory men routinely rape smaller, less violent male inmates. And colleges report that nearly a tenth of reported sexual assaults are male-on-male. By contrast, female-on-female assault is very rare. Your "reasonable man" and "reasonable woman" standards, which reflect only the gender of the complainant, are therefore illogical even if it is permissible to create sex-based standards depending upon the gender of the complainant and accused. The statement quoted in Judge Beezer's ninth footnote justifies different standards for men and women by incorrectly claiming that "women as a group tend to hold more restrictive views of both the situation and type of relationship in which sexual conduct is appropriate." Unless "sexual conduct" is limited to mean only sexual intercourse, this statement is false. Many forms of sexual interaction are initiated largely by women. In every workplace in which I have ever worked, women were more likely to initiate flirtation than men. Moreover, women have more license to engage in various types of sexual expression than men. For example, female advice columnists like Ann Landers and talk show hosts like Oprah Winfrey are able to openly discuss sexual matters such as sexual dysfunction, oral sex, and masturbation in ways that would be socially unacceptable for male public figures. Women do, however, have a more restrictive view of when men, as opposed to women, may initiate sexual interaction. For example, a woman who expects a man to be flattered when she makes an advance may nonetheless be insulted when a similarly-situated male makes a pass at her. This is part of a double standard that defines female sexuality as sexy and desirable, but male sexuality as dirty and undesirable. The ruling you joined in Ellison encodifies in law this double standard between male and female sexual expression, delegitimizing male sexuality in the very forums workplaces, universities, and schools in which most life-giving romantic relationships arise. It also places no responsibilities on complainants to take even the simplest steps to foster communication that will prevent the creation of a "hostile environment." Judge Beezer wrote, "Well-intentioned compliments by coworkers...can form the basis of a sexual harassment cause of action." Now, a compliment can hardly be well-intentioned if it follows a request to stop. Implicit in Judge Beezer's statement is the notion that a woman can remain utterly passive in the face of good-natured workplace banter designed to foster good relations with her, irrationally depriving co-workers of any clue that she is offended, and yet sue her hapless employer later for "sexual harassment", even though the employer had every reason to believe the complainant enjoyed receiving the compliments at the time they were uttered. Please rethink the sex-discriminatory "reasonable man"/"reasonable woman" double standard you adopted in Ellison and ponder the restriction of free expression in schools and universities that has resulted from its broad, vague definition of what can constitute a "hostile environment" for the "reasonable woman." Free speech is the cornerstone of a tolerant society, It preserves human dignity by enabling us to express our individuality. But if a human being can be persecuted with government sanction for what he says in an unguarded moment, then the First Amendment has become a broken promise, and dignity and honor have ceased to be attributes of American citizenship. Thank you for your attention. Sincerely, Hans Bader, 2L