Key question in Sonoma State scandal: What’s the threshold for sexual harassment under federal Title IX rules?

What constitutes sexual harassment in the eyes of Sonoma State University and the wider California State University system?

And how bad does the misconduct have to be for it to be found in violation of federal Title IX statutes, the landmark civil rights law that prohibits sex-based discrimination at qualifying educational institutions.

Those questions have been at the heart of sexual harassment scandals that have roiled the CSU system of late, toppling the chancellor in February and now threatening Sonoma State President Judy Sakaki’s six-year reign at the Rohnert Park university.

But those questions of law do not have simple answers, according to Sandra Hodgin, a national Title IX expert and consultant.

Under the current threshold defined by Title IX, the behavior must meet three criteria: it must be severe, pervasive and objectively offensive. CSU Title IX polices prohibit sexual harassment, sexual misconduct, sexual exploitation, dating violence, domestic violence, stalking and acts of retaliation when such behavior is reported.

“It really turns out to be case by case, honestly,” Hodgin said.

It is difficult even for many experts to cite specific examples of harassment that can be used as standards for severe, pervasive and objectively offensive, she said.

“Severe is ... the individual was traumatized, starts having panic attacks,” she said. “Severe is the person stopped going to school, dropped out, tried committing suicide. Severe is the employee started getting shingles and was placed on some sort of workers comp because they couldn't even go to work and do their duties.”

Pervasive, she said, is when the harassment continually happens or escalates — there is stalking or touching involved. “And objectively offensive is ... if it happened to your mom or your sister, and you feel like that is one of the most horrific things you've ever heard, that is offensive and objectively offensive.”

In the case plaguing Sakaki, the reported behavior of her husband, Patrick McCallum, toward several female SSU employees would not have met those standards for sexual harassment, according to a CSU review of claims about McCallum. He has apologized while denying his “gregarious” behavior was sexual in nature.

Sakaki has lost a no-confidence vote of the SSU faculty fueled by criticism of her handling of the claims and a campus enrollment and budget crisis. The North Bay’s two state senators, key legislative allies for the university, have called on her to step down.

Title IX process

Harassment and misconduct investigated under Title IX is usually done by a campus Title IX coordinator or the university’s legal counsel, Hodgin said. Each university has its own culture of response to alleged Title IX violations, she added, and some Title IX coordinators in her experience do not fully understand the federal statutes they’re in charge of enforcing.

Enacted under the Education Amendments of 1972, Title IX statutes were originally focused on discrimination against students. Sex-based discrimination against education employees, originally covered under the Civil Rights Act of 1964, came under Title IX review two decades ago, Hodgin said.

U.S. Department of Education’s Title IX regulations issued in 2020, which codified earlier guidance, raised the bar for potential violations under the federal statute. Now, to be found as violating federal law, the acts must be severe, pervasive and objectively offensive.

But in the case of often complex reports of alleged misconduct, how is that standard applied?

California State University policies defining the terms severe, pervasive and objectively offensive “rely on their common meaning,” said Mike Uhlenkamp, a CSU system spokesperson.

Uhlenkamp said freedom of expression, protected under the First Amendment, is also considered when evaluating harassment claims. But CSU sexual harassment policies make it clear that free speech does not exist in a vacuum.

“Whether particular conduct constitutes harassment requires a fact-based analysis that can be challenging because the line between free speech and harassment is sometimes hard to draw,” Uhlenkamp wrote.

He said courts have repeatedly acknowledged that “merely” offensive or insulting speech is protected speech and therefore cannot be prohibited by law or by a public university’s policy.

“In other words, in order for speech to constitute harassment, it needs to be ‘more than’ offensive or insulting,” he said. “That is where severity and pervasiveness come into play.”

Furthermore, Uhlenkamp pointed out that sexual harassment is defined differently by federal education regulations than under state law. Under state law, to be considered sexual harassment, the behavior may be severe “or” pervasive, but must also be objectively and subjectively offensive.

He said federal Title IX regulations “define sexual harassment as ‘severe’ and ‘pervasive’ and ‘objectively offensive,’ but they do not require that the complainant establish that they were in fact also subjectively offended by the conduct.”

For guidance on what constitutes severe, pervasive and objectively offensive, Title IX investigators, experts and university legal teams turn to Supreme Court cases and other court decisions, Hodgin said.

“You look at former cases that are winning in the courts to kind of help determine how that definition can be interpreted,” she said.

You can reach Staff Writer Martin Espinoza at 707-521-5213 or martin.espinoza@pressdemocrat.com. On Twitter @pressreno.