AA for Effort: This Lawsuit is More Masturbatory Than Most

Rooks has never done a guest post for someone else before, so this was fun, if probably longer than Alex was expecting!  This post and other sexytimes law ruminations can be found at Between the Briefs, and she also corrals a herd of awesomeness over at Res Ipsa Etc., where she hopes to get Alex to return the guest post favor sooner rather than later.

Today's moment of deep-seated appreciation for all the delightful readers and content aggregators out there in the series of tubes interwilderness is brought to you by my unceasing delight in waking up to emails of links like the following:

Lawsuit vs. school cites masturbation assignment

YES!  I mean, probably, "Oh no," but I'm still excited, perhaps perversely, about such apt sex law fodder, not to mention someone asking me if I have thoughts - specifically regarding whether the elective nature of the course matters, and on the issue of alternative assignments.  Yes, I sure as hell do have the thoughts!  Of course I do!  Many of them.  After all, basically all I do at Between the Briefs is think about sex (ok, and occasionally the law as well).

In brief, for all you TL,DR readers out there, I don't think it constitutes sexual harassment.  I can understand how the elective nature of the course might matter in that assessment.  And while the refusal of an alternative assignment makes a certain degree of sense to me, I do actually think the assignment itself is odd (though not for the reasons elucidated in the article linked above).

A Short Summation: 

Karen Royce, a returning student seeking to become a social worker, took a human sexuality course from Prof. Tom Kubistant, one in which he required the signing of a waiver due to the explicitly sexual subject matter covered during the course on the very first day of class.  Basically, the waiver acknowledged that the students in question were aware of the nature and requirements of the class, which is to say they knew what the hell they were getting into, as it were.  Royce went ahead and signed her waiver without reading it - rookie mistake, kids! - and then was appalled, appalled, to discover that the professor really did require "his students to masturbate, keep sex journals and write a term paper detailing their sexual histories in order to receive a passing grade."  Go fig.  Royce simply couldn't believe that a human sexuality course would ask students "to list different types of sex and sexual positions," or that Kubistant would "read the lists aloud to the class and then [ask] the students to write three 250-word journal entries about their sexual thoughts for homework," much less, "assign a 14-page term paper which required students to detail sexual exploration, abuse - including rape - virginity loss, cheating, fetishes and orgasms, among other things."  THE HORROR.

Royce dropped the class after four meetings, but she was so generally wigged the hell out and concerned for the poor, poor children - who, by the way, seem to unambiguously support the professor, who's quite popular at the college - that she initiated an investigation at the university, alleging sexual harassment.  The investigator reviewed the syllabus and spoke to folks, and found that there were no shenanigans going on.  Royce then addressed her concerns to the U.S. Department of Education’s Office for Civil Rights, who subsequently agreed with the school that there were still no shenanigans going on.  Now Royce is appealing her indignation to the U.S. District Court of Nevada, again asserting that Kubistant's assignments invaded her privacy and were tantamount to educationally sanctioned sexual harassment.

But is she right?

Well, no.  Sexual harassment in schools is ruled by Office of Civil Rights sexual harassment guidelines under Title IX, not the EEOC guidelines, namely, as my sexformant rightly points out, "Whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex."  So, there's a reasonable amount to parse in that seemingly simple statement.  Can the student not participate in the school's program?  If not, is this inability based on "sex" as understood under Title IX?  The school is clearly aware of the goings-on in Kubistant's class, but the course itself is one of several options to fulfill the degree requirement in question in Royce's case.  Not looking great for Royce.  If the assignment were sexual harassment, one could certainly argue that it would be illegal in that it's quid pro quo -

"The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student's submission to unwelcome sexual conduct.  Whether the student resists and suffers the threatened harm or submits and avoids the threatened harm, the student has been treated differently, or the student's ability to participate in or benefit from the school's program has been denied or limited, on the basis of sex in violation of the Title IX regulations."

- namely, a shitty grade.  But clearly OCR doesn't think so, and they are the folks in charge, dammit.  Even if we won't just take their word on it, the inference that the alleged victim needs to loosen the hell up, if that's what happened and depending on precisely how it was phrased and the context of the pedagogical methodology of the course structure, could possibly rise to that level, but that's a statement, not the assignment itself.  It certainly doesn't seem like such things were said so frequently re: Royce to meet the requirements of hostile environment - especially not in what basically amounts to 1-2 weeks worth of class, depending on the frequency of the meetings, and super especially if there's a reasonable inference that Royce arguably invited the reply by publicly commenting on her own masturbation habits first, after having signed the waiver.

Beyond that, neither the statement nor the assignment constitutes an offensive remark about someone's sex (embodied gender), nor an unwanted advance, request for a sexual favor or other harassment of a sexual bent.  Like I said already, I don't believe that the lack of alternative constitutes severe and pervasive, which is, I think, the other thing the school is getting at by harping on the elective nature of the course in the first linked article - it's certainly not the only elective for that requirement, so it's not pervasive, and giving someone a failing grade if they refuse to do required work isn't, in and of itself, severe. (I'll come back to whether I think the refusal of an alternative is odd.)

Does it matter?

As a teacher myself, it's perhaps a bit more . . . complicated.  I understand the purpose of the assignments detailed, and frankly, knowing that Royce wants to be a social worker makes it seem like even more of a good idea.  (The notion of a social worker who's easily offended and rather a bit judgy about sex is frankly disturbing to me.)  The fact that it's required without alternative assignment can be tough, I realize, but it's likely for a good cause.  I know that, when I was teaching human sexuality, we required the wee kiddles (ages 17-25, so not actually very wee) to read and watch what some might call pornography, and occasionally people would ask if they could do something else instead.  That answer was, inevitably, "no."  The point was not to agree with the instructors, but to expose oneself to and potentially confront ideas and notions one may not have engaged before, and students don't do that by getting out of anything that they simply don't care to engage, for whatever reason.  That's not the point of, you know, education.

In order to ensure a minimum of fuss (similar to this scenario, but without a written waiver), we would announce at the beginning of the course that the readings and viewings on the syllabus were required, and if a student didn't want to participate in them, they could drop the class.  This disclaimer was direct and, though simple in outcome, elaborate (in some ways) in explanation - we'd go over what was in each of the potentially problematic assignments and say, "this is what this is about, these are the sorts of sexual expressions you might read about, and if you can't handle that, and handle engaging in a respectful discourse about that, then this isn't the course for you."  Seriously, it was like a dramatic reading of a syllabus.  (Very meta.)  As such, and with the caveat of my own background firmly in place, allowing no alternatives makes complete sense to me, pedagogically. (Additionally, to be in Title IX compliance, schools must not "treat one student differently from another in determining whether the student satisfies any requirement or condition for the provision of any aid, benefit, or service."  So it seems as if an alternative assignment could potentially get someone in even hotter water.)

Regardless, assigning masturbation, given the academic climate I reference below, not to mention the cultural one, is bold, yo.  Beyond an admiration for the professor's pluck, however, I'm not sure how I feel about a mandated sexual act - like, if the student were legitimately asexual, what then?  Positioning oneself in an authoritative stance and subsequently telling someone clearly subordinate within that power structure  - teacher/student - what to do with their body, even if that thing would likely be a very good idea or at the very least really rather educational, smacks of the sort of patriarchal control over the sexuality of others that many scholars frequently find problematic.  Conversely, of course, there's absolutely something to be said for expanding the discourse on sexual expression at the most basic, personal level, especially in a class where one must be able to effectively communicate about sex in fairly public fora in order to grasp and engage the concepts being discussed.  It's a toughie.  To my mind, the better assignment might be to have them document and journal about how they express or don't express themselves as sexual beings (be it masturbation, or looking at cute people, or engaging in fetishistic behavior re: clothing choice, or fucking somebody, etc.), and to contemplate why that is, to critically engage what that might mean, rather than instruct them to touch themselves more and write about it, finis.

The "draw your orgasm" assignment is, in some ways, just as potentially exclusionary, especially on a college campus - depending on how it's crafted, it quite possibly invisibilizes anorgasmia, which has been documented repeatedly as an extremely common phenomena for younger ciswoman types (I dunno if anyone's done a study on anorgasmia in young trans populations, but I'd be keen to read it, if so) though it does also occur in other demographic groups as well.  As such, the homework, perhaps inadvertently but nonetheless, creates an assumption of normality in the ability to orgasm that is frankly unreasonable given the population stats of college campuses (not to mention that, in my personal experience, many introductory level human sexuality courses tend to have predominately woman-identified students).

On the other hand, I think it would be fascinating and potentially illustrative (pun extremely intended) to have folks draw/describe what they think orgasms should or do look or feel like, especially if partnered with some sort of reading about the topic with additional historical and/or cultural significance - like, say, excerpts from Nancy Friday or Betty Dodson, perhaps in addition to works with a more specifically medical bent, like The Science of Orgasm, or The G-spot (if you wanna go old school and/or historical with it).  That could potentially contextualize the conversation in an intersectional discussion of how sexual questions tend to span cultural/social/medical/ethical/moral/historical/legal/political/theoretical (phew!) fields, dare I say spheres, of influence.  Further, a professor might then explore how our understanding of something as seemingly concrete and specific as "orgasm" is bound within these particular understandings, yet drawn in these situational nibbles and bites from all of them, and thus examine the extent to which the study of sex, whether currently or historically, probably ought to do likewise in order to even begin to grasp the near-infinite complexity surrounding what's often thought of as an extremely concrete act.  (Actually, should I ever get to make my own syllabus, I'm totally doing an orgasm week.  Or hell, even beyond that, it would be more than a little awesome to structure a syllabus on the commonly elucidated stages of arousal and excitement and whatnot.)

I do think, on a personal level, as an instructor I might feel a bit . . . odd reading sexual case studies of my students - in no small part because the pressure to avoid even a whiff of inappropriate conduct is, in my observed experience, even higher for those teaching in arguably transgressive fields.  It's sometimes hard to disengage oneself from that clearly messed up narrative.  Naturally, it's possible that anonymous submission might address that concern (though frankly, with some students it might not be hard to guess, and that barrier is broken, potentially, when it's time to input grades).

The presumption that it's inappropriate, however, is likely more troublesome to me than the potential, err, inappropriateness of these assignments themselves. That idea works on the notion that reading about someone else's sex life must necessarily be prurient, and that's a notion that has been getting in the way of funding for sexual research and less abashed scholastic exploration of sexual topics for decades now, not to mention the perception of the credibility of those who chose to do academic work in human sexuality in a variety of fields (to wit, the narrative I mentioned earlier).  At least one of the above articles (the NY Daily News one) falls into precisely this trap, discussing the teacher as if his assignments are freakishly pervy! Terribly licentious!  Filthy, filthy nastiness of epic proportions!  Royce's lawyer encourages these histrionics, stating, "My mind immediately went to the question is he grooming these young 17-, 18-, 19-year-olds so he can have further contact with them outside the school environment?"  Tell you what, dude, if that's where you're mind goes first, what I don't want is you teaching kids - I'll gladly roll the dice on the beleaguered and well reviewed professor.

If we're being honest, though, I think the worst bit of prospectively reading the sexual history of a student is ridiculously evident - the writing.  Anyone who's read the work of the average college student can tell you that that business is not infrequently dishearteningly abysmal.  I mean sure, given a deadline and Wikipedia, most of the kids could probably pop out a particularly porny chapter of Fifty Shades of Grey, but this is supposed to be a more clinical history, if I'm understanding the assignment correctly.  In my head, it would be like a Harlequin romance novel had a poorly punctuated one night stand with a particularly dry chapter of The Kinsey Report, resulting in a painfully mediocre lovechild . . . as written by an undergraduate.  Can you imagine having to read 75-150 fourteen page papers of that?  (Plus the journals and all the rest?)  It's positively shudder inducing.  I want to be clear, here - I don't discount the potential interest and variability of the sex lives of the younger set; I simply don't have much faith in their ability to cohesively and effectively communicate same.  If anything we should probably thank Kubistant for taking one for the team, but we'll have to settle for hoping the escalating suits against him (and the hearteningly supportive administration) come to naught in the end.