San Diego Law Review

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This Article proposes a new conception of sexual harassment that melds the insight of social science with the parameters of sexual harassment established through the Dueling Title IX Conceptions of sexual harassment. This Fear Environment Conception of sexual harassment defines sexual harassing speech as:

Speech that creates an environment of fear that interferes with the educational experience of students by causing a reasonable student to believe that (1) they will face similar threats in the future that (2) they cannot avoid, based on the (3) perceived harmful intent of the speaker.

This Fear Environment Conception focuses on the education interference that Dueling Title IX Conceptions of sexual harassment identify as the root harm of sexual harassment while utilizing social science to target the fear that creates this education interference. It also uses the critical features of both Dueling Title IX Conceptions of sexual harassment. As with the Hostile Environment Conception, the Fear Environment Conception also assesses speech based on the environment it creates to target speech that produces a harmful educational environment. As with the Objectively Offensive Conception, the Fear Environment Conception creates an objective standard by assessing speech from a reasonable person’s perspective. However, the Fear Environment Conception eliminates the ambiguity that plagues both Dueling Title IX Conceptions by utilizing social science to identify the specific features of speech that cause the fear that leads to education interference and, therefore, the harm associated with sexual harassment.

To establish the Fear Environment Conception of sexual harassment, Part II of this Article provides a detailed analysis of the various definitions of sexual harassment offered by Title IX.

Part III of this Article discusses the social science research regarding sexual harassment, which demonstrates that fear is the key feature that distinguishes harmful sexual harassment from provocative speech that educational institutions must protect. Finally, Part IV establishes the Fear Environment Conception of sexual harassment that utilizes social science to define sexual harassment based on the fear that creates education interference.

Through this Fear Environment Conception, educational institutions will be able to eliminate the culture of fear created when the line between free speech and sexual harassment is blurred. Specifically, it will avoid the overbroad definition of sexual harassment that creates a culture of fear in which students are afraid to express their beliefs. At the same time, it will protect against the culture of fear that arises when educational institutions fail to eliminate the nefarious forms of sexual harassment. Instead, this Fear Environment Conception will enable educational institutions to create a culture of interaction where students are free to express their beliefs and opinions without fear of sexual harassment or speech limits.

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