As I mentioned in my previous post, my students (playing the roles of Harvard law professors circa 2003-04) will be re-enacting a faculty tea and debating a number of contentious questions relating to Harvard’s response to the Facemash incident. Let’s tackle the question of sexual harassment first, a topic that has dominated the headlines lately. In particular, what acts constitute harassment; how broadly or narrowly should sexual harassment be defined? By way of example, here is how the U.S. Equal Opportunity Employment Commission (EEOC) defines sexual harassment:
It is unlawful to harass a person … because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general *** Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment ***
What about Facemash? Under the EEOC’s broad definition, was the Facemash website a form of sexual harassment? Put another way, was Facemash an “isolated incident” (a harmless prank), or was it severe enough to create a hostile or offensive university environment? Also, does it matter that Zuckerberg was a student — not an employee — when he created Facemash? Maybe not. Title IX, a federal law enacted in 1972, prohibits sex discrimination in educational institutions that receive federal funding. While Title IX is a very short statute, Supreme Court decisions and guidance from the U.S. Department of Education have given it a broad scope covering sexual harassment as well as sexual violence. Under Title IX, colleges like Harvard are legally required to respond and remedy hostile educational environments and failure to do so is a violation that means a school could risk losing its federal funding. This legal requirement, in turn, raises a new question: do Harvard’s “Ad Board” procedures (circa 2003) comply with Title IX? We will address that fundamental question in our next blog post …