McCain’s letter, sent to Holder last Wednesday, accuses Assistant Attorney General Tom Perez and Department of Justice (DOJ) lawyers of having “single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country.” Endorsing claims made by the Foundation for Individual Rights in Education (FIRE), which has led the attack on the DOJ and OCR, McCain suggests that guidelines set out by the DOJ and the Department of Education’s Office of Civil Rights (OCR) with one university in the wake of increasing student protest and complaint over the epidemic of rape culture across college campuses would somehow restrict free speech.
As ThinkProgress reported in June, the agreement in question was reached by the DOJ and OCR with the University of Montana in May in an effort to prevent sexual harassment and assault following a string of high-profile cases and subsequent mishandling by campus authorities. In one particularly notable case, a woman who reported her attempted rape was told “not to expect much” and told that half of all rape allegations were false. The final agreement is so measured that it has been met only with hopeful skepticism from campus activists.
Over the past two months, conservative and libertarian critics of the agreement have seized on one section of the lengthy agreement, which is intended to encourage students to feel more comfortable reporting conduct they feel harassed by, rather than be burdened with interpreting Title IX regulations themselves. In that vein, the section defines sexual harassment for the purpose of student reporting as “any unwelcome conduct of a sexual nature.” Government officials have repeatedly reiterated that only conduct that meets the legal standard of being “severe or pervasive” and creating “a hostile environment” will be subject to enforcement, and that the guidelines merely try to “ensure students are not discouraged from reporting harassment.” But that has not stopped McCain and other conservatives from insisting that this section creates a new and expanded definition of sexual harassment, alleging that it could even encompass a student asking another on a date.
McCain’s letter includes several questions asking for clarification on the DOJ’s definition of sexual harassment and the implications of its agreement with the University of Montana, and requests a response by July 17. A DOJ representative said in a statement to the Huffington Post said that the Department was reviewing McCain’s letter.
Despite the controversy, University of Montana officials have said that they will go ahead with implementing the agreement and do not see it as unconstitutional. “I don’t believe we’ve been instructed to [create a new category for sexual harassment],” Lucy France, legal counsel for the University, told the Moussilian. “We’re working on a draft policy that’s consistent with the law, and not inconsistent with First Amendment rights and academic freedom. That’s what we agreed to do with the DOJ.”