A clash of rights on campus: Preventing and responding to the sexual harassment of students and protecting constitutional rights in the higher education environment

This study examined how the law, primarily through federal court cases, has addressed the potential conflict between preventing and responding to the sexual harassment of students and upholding individual constitutional rights in the higher education environment. Twenty-our federal court cases were reviewed, raising the following federal constitutional challenges: (1) freedom of speech/expression, (2) academic freedom, (3) freedom of association, (4) due process rights (both procedural and substantive), (5) equal protection rights and (6) privacy rights. Freedom of speech/expression and due process challenges were raised most often in the cases reviewed.; In order to review the courts' analyses of these constitutional challenges, the cases were placed into the following categories: (1) University Regulation of Faculty Members' Classroom Speech; (2) University Responses to Faculty Members' Sexual Advances Toward Students; (3) University Regulation of Intimate Consensual Relationships Between Faculty and Students; (4) Student Misconduct and Resulting Disciplinary Action; (5) University Anti-Harassment Policies; and (6) University Computer Use Policies. The federal courts addressed the constitutional challenges within these categories on a case by case basis. The legal analyses were fact specific and the outcomes were dependent upon the unique circumstances of each case. Accordingly, no broad legal conclusions could be drawn from the cases reviewed.; Overall, college and university attempts to regulate speech in the classroom were highly scrutinized by the courts and likely to be found as violating both faculty members' and students' freedom of speech/expression rights. The federal courts also focused upon the need for institutions to provide accused individuals with their federal due process rights when responding to sexual harassment complaints. With little clear guidance from the federal courts, it was recommended that colleges and universities act cautiously in this area, review situations on a case by case basis and look to legal precedents and future legal developments in this area of the law.