BY ANDREA TORTORA
The Cincinnati Enquirer
HIGHLAND HEIGHTS -- Both parties to a federal lawsuit about Northern Kentucky University's sexual harassment policy are appealing a judge's ruling that the policy is vague and too broad.
U.S. District Judge Jennifer B. Coffman made the ruling on a two-year-old lawsuit filed by art Professor Kevin Booher. Mr. Booher alleged the policy was unconstitutional because it violates First Amendment rights of free speech.
NKU disagrees with the judge. NKU Attorney Sara Sidebottom said NKU's policy is based on federal and Equal Employment Opportunity Commission guidelines.
"We are appealing the decision that finds the policy unconstitutional on its face since the policy is comparable to many used by higher education institutions," Ms. Sidebottom said.
Mr. Booher's attorney, Zachary Gottesman, said he doesn't think the judge's ruling went far enough. He filed an appeal, too, citing the fact that what happened to Mr. Booher could happen to other professors at the university.
"What we have at NKU is professors who avoid controversial topics that are important and germane to society because of the sexual harassment policy," Mr. Gottesman said.
The case is a complicated one, dating to 1995 -- when 45-year-old Martha Wells filed a sexual harassment complaint against Mr. Booher, a tenured professor. Ms. Wells was a student in Mr. Booher's nude figure drawing class.
She initiated a sexual harassment proceeding against Mr. Booher in November 1995, citing offensive statements made during class, including a discussion of Degas' work as being voyeuristic. When the matter was not resolved through an informal process, Ms. Wells filed a formal complaint.
In June 1996, a sexual harassment panel met and concluded that Mr. Booher violated the university's sexual harassment policy. Mr. Booher appealed that decision and won. Provost Paul Gaston found there wasn't sufficient evidence for a reprimand, and he dismissed the punishment.
The First Amendment issue part of the case involves a spring 1996 action by faculty to censure Mr. Booher after he made comments to a newspaper reporter about an art exhibit titled "Immaculate Misconceptions."
NKU administration had encouraged the art department to change the name of the exhibit in reaction to public criticism and pressure from two state legislators who threatened to cut millions of dollars in funding for a science center.
On May 9, 1996, art department faculty voted to censure Mr. Booher for speaking to the press.
Mr. Booher then filed suit, alleging violation of his First Amendment rights to free speech, including remarks made in a classroom, and defamation of character.
He "feels he's been singled out for special punishment," Mr. Gottesman said. "He wants some protection and guarantees that he won't be subject to anymore disparate treatment."
Judge Coffman ordered the parties to hold a settlement conference at the end of August. Attorneys for both sides said the meeting was not fruitful. The case is scheduled for trial in September 1999.