MAXWELL:  The professor may speak, freely

9/8/1996 – Printed in the PERSPECTIVE section of the St Petersburg Times Newspaper


Score a tentative victory for academic freedom that should advance the debate over what is and is not sexual harassment in the college classroom.

In a 3-0 decision, a panel for the 9th U.S. Circuit Court of Appeals in San Francisco recently ruled that San Bernardino Valley College’s anti-harassment policy infringes on the free speech rights of Dean Cohen, a tenured professor of English and film studies. He has taught at the school since 1968.

His troubles started in February 1992, when he required students in a remedial English class to write an essay defining pornography after studying essays by authors Gloria Steinem and Susan Jacoby. The two essays were anthologized in an approved textbook sold in the college bookstore.

A female student, 35-year-old Anita Murillo, quit attending class when the professor did not offer her an alternative assignment. After failing the course, she formally complained to college administrators, alleging that the professor had created an “intimidating, hostile or offensive learning environment,” as vaguely defined by the college’s anti-harassment policy adopted in 1991. She further said she was offended that Cohen demonstrated writing techniques by using his published critiques of pornographic films.

For Cohen, the assignment was intellectually sound. “I mentioned that U.S. Supreme Court Justice Potter Stewart said that he may not have been able to define pornography but knew it when he saw it,” Cohen said. “I told the students that they had to do better than Stewart does. Their job, in fact, was to define pornography, to come up with some specifics to separate what might be merely sexually titillating from pornography or what might be considered to be obscene from something which is non-pornographic. It was a subject very much in the public debate at the time.”

To circumvent Cohen, Murillo asked the English chairman to let her take the departmental examination. After she failed the test twice, she automatically failed Cohen’s course. Remedial students must pass the departmental final to pass their individual English course. The student filed a complaint against Cohen in May 1993.

According to the court opinion, the Board of Trustees and the president humiliated the veteran professor by requiring him, among other actions, to attend a sexual harassment seminar; to undergo a formal evaluation in accordance with the collective bargaining agreement; to become sensitive to the special needs and backgrounds of his students; and to change his teaching plans when officials deemed that he was creating a climate that impeded the students’ ability to learn.

Moreover, Cohen was warned that if he violated the harassment policy again, he would face further discipline, possibly suspension or termination.

As a college professor, Cohen acted correctly in refusing to offer a single student, in a class of 27, an alternative assignment. Were he to have done so, he not only would have destroyed the uniformity of the class assignment, but he also would have been unfair to students in the class who, by the way, completed the assignment without incident.

“In a teaching situation, one chooses material because it forces a student to deal with certain specific problems in a certain specific fashion,” Cohen said. “If a teacher then said to each student, “You choose the topic and I’ll absent myself,’ then the direction of the class has nothing to do with the designed intention. If you provide a syllabus and then everything changes at the whim of a particular student, where are you in terms of design of the class? You can’t give individual students veto power over the classroom.”

Supporters of academic freedom call the court’s ruling a milestone for free speech in the classroom. Stephen Rohde, Cohen’s lawyer, said, “It is a fundamental question of whether we can cloister and protect students from the rough and tumble debates of life. College isn’t meant for that.”

Ann Franke, general counsel for the American Association of University Professors, who also wrote a brief on Cohen’s behalf, said: “The purpose of professor Cohen’s assignment was to get students to write analytically about an emotionally charged subject. He says that college professors need to take students from where they are to some place new. And that (trip) can be challenging and uncomfortable. AAUP believes that the university needs to be a place where ideas can be examined without restriction. As long as the speech is related to the subject of the course, it needs to be permitted.”

Franke also believes that students have a right to be protected from personalized, individual harassment. No professor should be permitted to single out a student or use sexually loaded language gratuitously. Cohen did neither. According to court records, although Cohen often played the devil’s advocate, his teaching style long had been praised by students, faculty and administrators alike.

Judge Robert Merhige Jr., who wrote the opinion, said that the college’s harassment code violates the First Amendment because its vagueness may “trap the innocent” by failing to adequately define what behavior is permissible. He called the college’s action against Cohen “legalistic ambush.”

After he had been punished, all professors had to watch a film on sexual harassment in the corporate workplace. The film was not about harassment relative to college teaching, but about trading sexual favors for job promotion.

Cohen’s treatment is an example of why academic freedom must be protected, why sexual harassment policies must be narrowly worded. It shows also that too many college officials unthinkingly bow to the misguided complaints of students who want learning to be comfortable, who want course content to be compatible with their societal views.