Introduction

On May 30, 1997, the University Committee appointed nineteen members to an Ad Hoc Committee on Prohibited Harassment Legislation eleven faculty (one ex officio), four academic staff, three students, and one administrator (ex officio). The Ad Hoc Committee was charged with reviewing Faculty Legislation II-303-305 "Prohibited Harassment: Definitions and Rules Governing the Conduct of UW-Madison Faculty and Academic Staff." In so doing, the University Committee was responding to allegations that the existing legislation impinged on academic freedom and interfered with the free flow of ideas in the classroom.

The University Committee directed the Ad Hoc Committee to review the legislation and propose what recommendations, if any, the University Committee should present to the Faculty Senate. More specifically, the Ad Hoc Committee was asked to address the following questions:

• Is a policy regulating professional conduct in regard to sexual harassment and expression in instructional settings necessary and/or appropriate?

• What should be the balance between protecting academic freedom and ensuring a learning environment that is comfortable for a diverse student body?

• Does the language of the current legislation and/or FPP Chapter 9 make the procedures to be followed in invoking the faculty legislation sufficiently clear and equitable?

• Is the existing language unconstitutionally vague and/or overbroad?

The Committee also concluded that a section on procedures for handling complaints should be added to the rules that define harassment. Although almost all harassment problems are resolved informally, the process through which this is accomplished has not heretofore been spelled out in faculty legislation. The proposed legislation fills this gap and also summarizes the formal disciplinary process, which is fully set forth in FPP 9. The committee further recommends adoption of a new process for preliminary determination of whether expression may be subject to discipline.

Committee members disagreed about whether the current policy's provisions regarding expression are vague or overbroad, but agree that the suggested revisions significantly clarify the intent to provide strong protection for academic freedom and to define unprotected expression more clearly than does the current legislation.

In keeping with its consensus that the current legislation should be superseded, the Ad Hoc Committee has put forward an extensive revision of Faculty Legislation II-303-305 and urges that the University Committee recommend its adoption by the Faculty Senate. The proposed legislative revision follows this report. The areas of disagreement are aired in a "Minority Report" and a "Reply to the 'Minority Report,'" which are appended.

Background

The roots of faculty legislation on prohibited harassment extend to late 1980 and a Regents Task Force on the Status of Women. Pursuant to the Task Force's report detailing serious problems with sexual harassment on System campuses, the Regents directed campuses to make recommendations on policies to address sexual harassment. At UW-Madison, the University Committee responded by appointing an ad hoc policy committee. The outcome was Faculty Document 458A (2 November 1981), "Sexual Harassment: Definitions and Rules Governing the Conduct of UW-Madison Faculty." In May 1988, the legislation was amended by the Senate to extend its coverage to harassment on the basis of race, cultural background, ethnicity or handicap. The following year, the legislation was revised to include the conduct of academic staff members and to protect recipients of university services from harassment. The legislation has not been revised since.

The legislation currently has four parts. Part I speaks to quid pro quo sexual harassment and Part II to flagrant or repeated sexual advances by faculty or academic staff. Part III addresses repeated demeaning verbal and other expressive behavior in non-instructional settings, and Part IV covers demeaning verbal and other expressive behavior in instructional settings. The Ad Hoc Committee recommendations would change the substance only of Parts III and IV, and would add a new Part V to specify procedures to be used in implementing Parts III and IV. Parts I and II would not be changed.

The Committee Proceedings

The Ad Hoc Committee held 23 meetings, beginning in early September, 1997, and culminating in final voting on May 11, 1998. In addition, to facilitate its work, the Committee was divided by the chair into a half-dozen subcommittees, which gathered information relevant to the Committee's work, assembled case studies relevant to legislation, composed a preamble, drafted revised legislation, developed procedures for discipline, and investigated possible alternatives to legislation. All told, the subcommittees held literally dozens of meetings.

In an effort to gather information about the extent of problems and complaints regarding expression by faculty and academic staff, the Committee surveyed every department chair, college dean and the Dean of Students Office by email. Results were collected and summarized, primarily by the subcommittee gathering information. Efforts by the subcommittee, plus numerous direct, email and mass media appeals from student members of the Committee, to obtain direct input from students other than those on the Committee were unsuccessful. Key findings include:

• Of the 46 department chairs responding, 44 reported no complaints during the past five years from students regarding faculty members' expression.

• The two chairs who did report complaints indicated that all were resolved informally, apparently at the department level.

• The procedure most commonly followed by departments is for a complaint to go either directly to the chair or to an adviser, who takes it to the chair. The chair then speaks with the faculty member and, if a solution cannot be reached, the issue goes either to the dean or to the department executive committee or grievance committee.

• Of the 46 responding departments, 28 had no written procedure for dealing with complaints about faculty speech.

• None of the 11 colleges responding reported having any formal complaints made under the current faculty legislation; seven reported having no informal or formal complaints; and all of those who reported informal complaints indicated that they had also been resolved informally. Examples included complaints about the title of a lecture by a visiting faculty member, negative comments about Asian-Americans, and anti-male comments.

• The Dean of Students Office provided examples of reports of harassment received from students via the Office's Speakup program, which has been in operation since 1995. Roughly 130 complaints have been received, including complaints by students about other students. Complaints about faculty or academic staff are referred to the Equity and Diversity Resource Center. Examples of complaints about faculty and staff have included allegations that a student's religious beliefs were disparaged, that a faculty member insulted a student's home country, that a faculty member mocked Asian students' speech and looks, and that a faculty member advised an African-American student to seek a less rigorous field of study.

• The Committee found no examples in which a formal complaint against an instructor for using allegedly improper expression in an instructional setting was brought and disciplinary proceedings commenced under FPP 9.

The Committee also obtained information from the eleven other CIC (Committee on Institutional Cooperation) schools, which include the Big Ten plus the University of Chicago, on whether they have rules on harassment comparable to our own. Nine schools have rules prohibiting sexual harassment. One of these also prohibits racial harassment. A tenth had no rules. The eleventh had proposed rules under consideration. With some minor variations, the schools that prohibited harassment defined it as including "verbal . . . conduct of a sexual nature" that has "the purpose or effect of substantially interfering with an individual's academic or professional performance or creates an offensive, hostile, or intimidating working or learning environment." Unlike UW-Madison's rules which deal separately with speech and other expressive conduct in classrooms and give it special protection the rules at these other CIC institutions make no distinction between speech in instructional settings and speech in other contexts.

In addition, several individuals appeared directly before the full Committee, either upon the Committee's request or after requesting an opportunity to speak. They included Gregory Vincent, Director of the Equity and Diversity Resource Center; associate deans from Letters and Science, Engineering and CALS; Associate Dean of Students Roger Howard; Professors Lester Hunt, Richard Long and W. Lee Hansen; and Chris Fredenberg, co-chair of the ASM Shared Governance Committee.

Committee member Amy Kasper shared the results of research she had done in spring 1997 as an independent study project involving focus group sessions and surveys of students and interviews with professors regarding freedom of expression in instructional settings. Her results indicated that students often felt reluctant to express unpopular viewpoints in class but that the faculty legislation was not a factor. Similarly, about a third of the 30 professors interviewed said that they were somewhat uncomfortable discussing controversial social issues in class, and one or two said that this might have had an impact on their teaching. For the most part, they attributed these reactions to what they perceived as the prevailing conventional wisdom or "political correctness" rather than to concern about UW-Madison's rules on harassment, though two respondents identified both "political correctness" and the harassment rules as factors contributing to their discomfort.

Important Features of the Legislation

The Committee specifically considered and, on a split vote, rejected repealing Parts III and IV of the existing legislation and not replacing them. The Committee also considered and, again on a split vote, rejected a proposal to eliminate all disciplinary sanctions for violating that portion of the proposed legislation affecting speech in instructional settings. Ultimately, the Committee voted 10-7 to recommend that the Senate replace the current legislation with the proposed legislation attached to this report.

It goes without saying that the recommended revision should be read carefully and compared with the current legislation. However, we call your attention in particular to the following changes:

• Parts I and II, which deal with sexual favors and advances rather than with pedagogical expression, remain unchanged but appear together under a separate heading. The proposed revision reaffirms the current policy on quid pro quo sexual harassment and unwanted sexual advances.

• Revised Parts III and IV, which deal with expression in instructional and non-instructional settings, and new Part V, which sets out disciplinary procedures, also appear together under a separate heading.

• Part III of the proposed legislation corresponds with Part IV of the current legislation; Part IV of the proposed legislation corresponds with Part III of the current legislation. The parts were reordered to place more emphasis on issues involving expression in instructional settings.

• A preamble has been added to declare the guiding principles and philosophy underlying Parts III and IV.

• Part III.A explicitly defines "instructor" and elucidates the definitions of "expression" and "instructional setting." In addition, it emphasizes the importance of free expression for both instructors and students in instructional settings.

• New language in III.B.1 and III.B.2 (corresponding with IV.B.1 and IV.B.2 in the current legislation) deals with expression in instructional settings. III.B.1 is intended to make clear that instructors enjoy strong and broad protection for expression germane to the subject matter of courses. This protection can be lost only where an instructor essentially singles out, and, without any reasonable pedagogical justification, derogates and debases a particular student on the basis of the student's gender, race, religion, ethnicity, sexual orientation or disability. III.B.2 addresses the use of epithets not directed to a specific student and the use of teaching techniques that derogate and debase students. Again, such expression is subject to discipline only if the instructor has no reasonable pedagogical justification for using it rather than an efficacious technique that would not be derogating and debasing. Both of these sections differ from the current legislation, which, rather than focusing on pedagogical justification, focuses on whether an instructor is "unreasonable" in claiming that the expression is germane. The Committee believes that the "reasonable pedagogical justification" standard is clearer and more appropriate because it does not involve judgments as to what is and is not germane to a subject.

• To further clarify the intent of the legislation, four examples are offered.

• Part III.B.3 collapses and simplifies what appears in IV.C.1 and IV.C.2 of the current legislation. Essentially, it requires that even if an instructor's speech would not be protected under the language of III.B.1 or 2, it is still not subject to discipline unless three additional criteria are met. The instructor must have repeated the expression despite being asked to stop; the expression is, both objectively and subjectively, seriously derogating and debasing; and the expression is likely to seriously detract from a student's capacity to act as an equal participant. The current legislation already contains a repetition requirement. However, it permits discipline where the expression is considered disparaging by members of the demeaned group rather than according to the broader standard used in the proposed legislation. Finally, the proposed legislation focuses on the impact of expression on the capacity of a student to act as an equal participant in the class, which the Committee regards as the primary harm against which the legislation should be aimed.

• Part IV roughly parallels the proposed Part III, but in non-instructional settings. It simplifies the corresponding section (Part III) in the current legislation by collapsing the current subsections III.A and B into one.

• Part V contains the proposed new procedures. Most importantly, it offers a non-disciplinary alternative to resolve cases. Furthermore, it gives an instructor the option of asking either the Committee on Faculty Rights and Responsibilities or the Academic Staff Appeals Committee to determine whether particular expression would be subject to discipline if it were repeated. The goal is to encourage non-disciplinary solutions and resolution of problems as quickly and early as possible.

The proposed legislation would thus make a number of important structural and substantive changes. The recommended revisions reflect the Committee's:

• commitment to strong protection for academic freedom tempered by recognition that such freedom is not absolute;

• desire to do as much as possible to guarantee that instructors not be discouraged from expressing and challenging students with controversial ideas and beliefs;

• acknowledgment that instructors have no right to derogate and debase students simply for the sake of doing so;

• concern that the point at which expression in instructional settings becomes subject to discipline must be identified and defined as clearly as possible;

• belief that fair and clear procedural rules are essential to appropriate implementation of the legislation; and

• hope that most disputes involving faculty and academic staff expression can be resolved informally and in mutually satisfactory fashion without resort to disciplinary proceedings.

Additional Documents

We also attach a "Minority Report" representing the views of the Committee members who did not fully support the revision, and a "Reply to the Minority Report" by those who did. Both sides agree that the current legislation needs revision. They also agree that having some legislation regarding instructors' expression is preferable to having none in order to keep the disposition of complaints within the realm of faculty and staff governance rather than leaving complaints brought under state and federal law as the only alternative. The two groups disagree, however, about how best to identify the point at which speech should become subject to discipline.

Steven Bauman, Mathematics and Education
Charles Bentley, Geology and Geophysics
Rebecca Bretz, Student
Claudia Card, Philosophy
Phillip Certain, College of Letters & Science (ex-officio)
Carin Clauss, Law
Charles Cohen, History
Donald Downs, Political Science
Robert Drechsel, Journalism and Mass Communication (Chair)
Ted Finman, Law (ex-officio)
Gail Geiger, Art History
Kathleen Holt, Employee Assistance Office
Evelyn Howell, Landscape Architecture
Stanlie James, Afro-American Studies/Women's Studies
Amy Kasper, Student
Frank Kooistra, College of Agricultural and Life Sciences
Jason Shepard, Student
William Steffenhagen, College of Agricultural and Life Sciences
James Wollack, Testing and Evaluation