Attorney Daryl Lapp, an expert on antidiscrimination in higher education, addressed the faculty Thursday, Sept. 25 upon invitation to speak from University Provost Marty Krauss, whose move was criticized by those who felt Krauss' invitation reflected the authoritative position she took in a case involving the University's harassment policy last fall.Krauss prohibited students and staff members from attending the speech.

Krauss told the Justice last month that she hired the lawyer after faculty members told her last year that they did not understand how antidiscrimination law is applied in various cases. She wrote in an e-mail to the Justice following the event, "This session was organized to provide an opportunity for the faculty to learn more about discrimination law and its applications and to have their questions about these issues addressed. It was not intended as an open event for the campus and thus, students and staff were not invited to event."

Prof. Sarah Lamb (ANTH), who attended the speech, said it should have been open to program administrators, who should be prepared if a student comes to them with a question or complaint about potentially harassing behavior in the classroom.

Last year, the Faculty Senate tried to bring a panel to speak on this issue after the Committee on Faculty Rights and Responsibilities said Krauss did not apply the full definition of discriminatory harassment found in the University's harassment policy when Krauss placed sanctions on Prof. Donald Hindley (POL) after students complained that he made racially insensitive remarks in class. The CFRR ruled in Hindley's appeal that the sanctions violated his right to academic freedom, and Krauss overruled this decision and closed the case in January.

In a Sept. 22 article on the Web site for the Foundation for Individual Rights in Education, a nonprofit education foundation that works to defend and sustain individual rights at U.S. colleges and universities and has been monitoring Hindley's case, Adam Kissel, director of FIRE's Individual Rights Defense Program wrote, "We hope that Lapp sticks to the law and respects the principles of free expression, . but we are concerned because such training sessions tend to scare professors into restricting their speech in order to avoid investigations and worse."

Kissel did not attend the event but told the Justice afterward, "I would recommend that someone sponsored by the faculty who is normally on the side of faculty rights speak to the faculty about sexual harassment and racial harassment law."

"The administration refused to work with either the Student or Faculty Senate in arranging a discussion on discrimination-and the provost lied last semester about working with the Student Senate to arrange such a meeting," Hindley, who did not attend the event, wrote in an e-mail to the Justice last week.

Lapp distributed a handout on his presentation that explains various laws that protect students from discrimination and a list of several cases involving sexual harassment or harassment on the basis of race or ethnicity.

The handout said that in order to meet legal obligations, universities must have a policy to forbid unlawful discrimination and have a procedure for dealing with complaints of discrimination.

Faculty Senate Chair Prof. William Flesch (ENG) said that during the speech Lapp described the kinds of case laws that balance academic freedom versus the right not to be harassed. Flesch said the "faculty are concerned" about issues regarding discrimination.

Lapp's handout says academic freedom is relevant in public or private institutions if it is addressed in a contract and that the First Amendment applies only to public institutions.

Lamb said the faculty expressed concern at the speech that free speech could be more restricted at a private university, thus inhibiting academic freedom, to which she said Lapp responded that free speech is not protected under the First Amendment if it is harassing and interferes with a student's education. She said Lapp did not specifically mention Brandeis' contract or harassment policy but that the University has some autonomy in revisiting and changing its harassment policy.

She said that if the University chooses to change or create new rules, it would be useful to communicate this information to the students and faculty.

In its December ruling on Hindley's appeal, the CFRR cited segments of a July 2003 letter from the United States Department of Education's Office for Civil Rights that Flesch handed out at Lapp's speech.

The letter said, "Harassment . to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR's standard, the conduct must also be considered sufficiently serious to deny or limit a student's ability to participate in or benefit from the educational program."

Lapp's handout says harassment is either sexual harassment or "'[h]ostile environment' harassment. . This means harassing speech or conduct that is sufficiently pervasive, intimidating, or abusive that it effectively prevents the student from being able to fully participate in the educational opportunity."

The CFRR ruling said, "To make these judgments [about whether the speech was harassment], it was essential for academic peers to ask more probing questions after the formal investigation [of Hindley] was completed, if not during its course."

Lamb said faculty members expressed concern that professors could be penalized for accidentally using an offensive term once. Lapp said this would have to be a very extreme case and that typically obscenities or derogatory language have to be used more than once, that it is difficult to decide what is harassing speech, and that the situation has to be investigated.

Flesch said cases of potential discrimination are hard because there is no mechanical process for dealing with these issues and that the Faculty Senate is constantly communicating with Krauss and working on a solution.

Lamb said the faculty are concerned about preventing harassment at Brandeis, but they want to protect both the professors' and students' rights.

Krauss said after the speech that faculty members thanked her for bringing Lapp, expressed curiosity in their questions and were very respectful. Flesch agreed that the faculty came out of the speech more informed.

Prof. Eric Hill (THA) a member of the Faculty Senate this year, and last year told the Justice last month that the Faculty Senate is looking into bringing more people to speak on this issue this year.