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:
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.
