Community college anti-harassment code rejected by Supreme Court, is 'too vague'





WASHINGTON, D.C. — The U.S. Supreme Court this March let stand a lower court’s ruling that rejected a California community college’s anti-sexual harassment policy for being unconstitutionally vague.

The Supreme Court denied a petition filed by the San Bernardino Community College district asking the Court to review the decision of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.

The federal appeals court ruled in August 1996 that college officials violated English professor Dean Cohen’s free speech rights when they reprimanded the professor for holding explicit classroom discussions they said constituted sexual harassment.

A student in Cohen’s 1992 remedial English class accused the instructor of sexual harassment for discussing controversial sexual subjects, reading articles he wrote from magazines such as Playboy and Hustler and using profane language in class.

The student, Anita Murillo, filed a formal complaint with the university over a year after failing Cohen’s class.

School officials, agreeing with Murillo that Cohen’s topics constituted sexual harassment, required Cohen to take a sensitivity training course and submit detailed class plans with content warnings to the department and students.

In a unanimous decision in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), the court held that the college’s code was “unconstitutionally vague” and could “trap the innocent” by not specifying what material is inappropriate. A lower court had ruled against Cohen.

Stephen Rohde, attorney for Prof. Cohen, said they were very pleased with the Supreme Court’s ruling, calling it a “wake up call to colleges and universities.”

Rohde said school officials now have to “go back to the drawing boards to draft a sexual harassment code that passes constitutional muster.”

Rohde said the decision may provide student press with protection from overbroad school policies.

“There is an analogy because the student press has First Amendment rights as well,” he said. “Laws impressed on the student press that suffer from vagueness are doomed.


reports, Spring 1997