Anti-harassment code struck down by federal court in Calif.
Teacher used Playboy, Hustler readings in pornography assignment
CALIFORNIA — A federal appeals court ruled in August that a community college’s anti-harassment code violates the First Amendment rights of a professor disciplined for requiring students to read and analyze articles from magazines such as Playboy and Hustler.
The Ninth U.S. Circuit Court of Appeals ruling exonerated Professor Dean Cohen, who filed suit against San Bernardino Valley College after being reprimanded because of a student’s complaint in 1993.
In the 3 to 0 decision in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), the court held that the school’s policy violated Cohen’s free speech rights because it was “unconstitutionally vague” and could “trap the innocent” by not specifying what material is inappropriate. A lower court had ruled against Cohen.
The ruling provides additional support to college publications that have been threatened with harassment charges based on material they publish.
Cohen’s lawyer, Steven Rohde, said, “We are extremely pleased with the ruling….The decision totally vindicates Professor Cohen.”
A tenured professor of English and film studies, Cohen has taught at the university since 1968. He was the first teacher ever charged under the anti-harassment rules.
The school’s then newly enacted policy forbids creating an “intimidating, hostile or offensive learning environment.” It is based on a non-discrimination policy that is common among universities and businesses and resembles the state Equal Employment Opportunity Commission guidelines against harassment. In its ruling, the court said the policy unjustly forces professors to censor themselves.
Professor Cohen was accused of harassment by Anita Murillo after she took his remedial English class in 1992. The professor was accused of discussing controversial sexual subjects, reading articles he wrote from magazines such as Playboy and Hustler and using profane language in class. The articles were for an essay assignment on pornography. Murillo stopped going to class and complained to the English department chair when Cohen refused to give her a different essay topic.
Murillo failed the class and filed a formal complaint with university officials over a year later. She claimed Cohen’s behavior was directed at her and other female students. The school’s grievance committee said charges of sexual harassment against Cohen were well-founded. That decision was appealed to the board of trustees who agreed Cohen’s actions were inappropriate.
The board required Cohen to take sensitivity training and submit detailed class plans with appropriate content warnings to the department and to students. Finally, he was warned that another complaint could result in his suspension or termination. The court’s favorable ruling, Rohde maintains, “demonstrates that even the laudable goal of eliminating sexual harassment cannot be achieved at the expense of First Amendment rights.”
In October the court denied the school’s request for a rehearing. Cohen and Rohde are now waiting to see if the college appeals to the U.S. Supreme Court.
California, reports, Winter 1996-97