We want to ensure harassment-free climates in schools and workplaces, and we want to protect the rights of people with disabilities. What happens when these imperatives collide?
Originally published in The Nation.
IN JANUARY 2020, DUTCHESS COMMUNITY COLLEGE in New York banned a photography professor named Lowell Handler from its property and declared him unqualified to continue teaching there. Handler, the school claimed, had touched students “in a sexual manner” without their consent and peppered his classes with suggestive comments. “Students have a right to an educational environment free of sexual harassment and forced touching,” wrote then-president Pamela Edington.
Handler came under scrutiny after a student claimed that, during a conversation, the professor reached across his classroom desk and grazed her pubic area with his fingertips. In the weeks that followed, other students came forward with stories of uninvited contact. One told a campus investigative panel that, after some “near misses” by Handler above her breast, she began wearing heavy clothing in his presence, even during warm weather. She said she asked male students to stand between her and the teacher as a shield.
Handler had taught at Dutchess’s Poughkeepsie campus for almost 20 years. He admitted to touching students, though he disputed the details—insisting, for example, that he touched the first accuser’s arm. He also acknowledged making offensive comments. But his explanation added a twist to the narrative: Handler has Tourette syndrome, a neurodevelopmental disorder that causes a wide range of involuntary sounds and movements. When Handler touched students, he said, the gestures were fleeting and reflexive, a manifestation of his condition, devoid of sexual intent.
For decades, Handler has been something of a Tourette ambassador. In the 1980s he traveled with Oliver Sacks, the storied neurologist, to document the lives of people with the condition. Together they published a Life magazine article about a large Mennonite farm family with a six-generation history of Tourette. Handler narrated a documentary about the syndrome called Twitch and Shout. In a memoir by the same name, he chronicled the perils of compulsive touching—as when his brother underwent a bone-marrow transplant that weakened his immune system. “No one was allowed to touch him,” Handler wrote. “I could not stop Tourettically tapping his ankle, however.”
At Dutchess, Handler was open about his condition. He talked about it at campus events. He disclosed it to his students at the start of each semester.
When he received the president’s letter, Handler pleaded for his job. “I have come to recognize that I experienced an exacerbation of my Tourette’s Syndrome this past year and became more disinhibited,” he wrote to Edington. “I believe that strains in my personal life contributed to this behavior.” Handler promised to re-engage in therapy, continue his medication, and make a “concerted effort” to modify his behavior. When the college did not relent, he and his attorney negotiated an early retirement to avoid an outright firing.
Then, in March 2021, he sued. “The college terminated him solely on the basis of his disability,” said the lawsuit, filed in the US District Court for the Southern District of New York. The coerced retirement, it alleged, violated the Americans With Disabilities Act (ADA).
Representing Handler in the ongoing case is Michael H. Sussman, a civil rights lawyer best known for his efforts to desegregate public housing in Yonkers, N.Y. (Jon Bernthal played him in the HBO miniseries Show Me a Hero.) Sussman has also litigated on behalf of sexual harassment victims, including a New York City Housing Authority heating plant technician who was penalized after fighting off her supervisor’s advances.
“For me,” Sussman said of Handler’s forced retirement, “it’s akin to blaming a person who’s in a wheelchair for being in a wheelchair.” Just as people with mobility issues can’t suddenly decide to walk, people with Tourette can’t decide not to have tics. “These are very much involuntary movements and sounds,” said pediatric neurologist Jaclyn Martindale, director of the Tourette Syndrome Specialty Clinic at Atrium Health Wake Forest Baptist in North Carolina. (She is not involved in the case.) “The way I like to describe it to families is: Can you prevent yourself from blushing? It’s not something that’s in your control, even if you don’t want it to happen.”
Still, knowing Handler’s diagnosis didn’t always change how students experienced his conduct. The initial accuser told campus investigators that she froze and felt scared when Handler reached across the desk. “I understand he has Tourette’s,” she said. “But this shouldn’t be an excuse for students to be constantly made to feel uncomfortable and unsafe in the school environment.”
That’s what makes the case so complicated. The law tries to protect people with disabilities from discrimination. It also tries to protect students and workers from sexual and racial harassment. “And the law is about resolving rights in tension,” Sussman said. “That’s what the law’s challenge always is.”
Back in 2016, before the students’ complaints, Handler predicted this collision of different rights. In a column called “Teaching With Tourette’s,” published on the Chronicle of Higher Education website, he wrote that students sometimes complained in their course evaluations of his “repeated touching,” which he acknowledged could be annoying. And he posed this question to readers: “Where does the civil rights of an individual with a disability intersect or ‘push the limits’ of the civil rights of the general population to live unencumbered or uncompromised by other people’s actions?”
WHEN A CHILD MISBEHAVES IN SCHOOL, federal law requires administrators to analyze whether that behavior is the manifestation of a disability.
“All of a sudden, you leave high school [and] that important analysis no longer exists,” said Susan Stone, an Ohio attorney who represents students and professors with disabilities. College students and teachers—not to mention employees at noneducational workplaces—lack the protections that K-12 students have. That puts them on shakier ground when they’re accused of antisocial behavior.
They’re accused with some regularity. “I probably hear of a situation like this”—at a school or elsewhere—“at least once a week,” said Amanda Talty, president of the Tourette Association of America. Last year, for example, a student named Seth Pressler, who has the disorder, sued the University of Southern Indiana, claiming that it barred him from campus because of the involuntary, offensive utterances that sometimes accompany Tourette syndrome. Pressler, according to the lawsuit, blurted out sentences like “I have a bomb,” which he followed with apologies and explanations. News accounts reported that he also shouted racial slurs, distressing his Black classmates. The university, in response, said that Pressler did not qualify as disabled and posed a “significant risk” to others. The case was settled out of court.
Conflicts also arise for students with autism, who are entering higher education in greater numbers than ever, in part because of better K-12 support services. Autistic students sometimes have difficulty reading social cues and thus engage in behaviors that, to their neurotypical classmates, resemble stalking. In college, the support services that earlier might have intervened are gone.
“You take a kid who’s had a life jacket on, and that’s how they’ve been swimming for years, and then you put them into a different pool, take off the life jacket, and say ‘Good luck,’” said Lee Burdette Williams, the executive director of the nonprofit College Autism Network. “And they just plunge to the floor of the pool. And one of the ways that happens is around their social interactions.”
The object of an autistic student’s attention might file a stalking complaint under Title IX, the federal education law barring sex discrimination. “And then you have [campus officials] swooping in to say, ‘That’s not allowed here, and now I’m going to have to sanction you,’” Burdette said. “And here’s the kid, furiously trying to stay above water.”
Ideally, these types of conflicts would be resolved outside the disciplinary system. But all parties must agree. “If the complainant is resistant, then the process is a runaway train,” said Brett Sokolow, advisory board chair of the Association of Title IX Administrators. “It goes from complaint to investigation to hearing to appeal. There’s no way around it.”
According to Sokolow, campus Title IX officers sometimes insist on using the disciplinary process, even if the behavior stems from a disability, because they don’t want to be seen as singling out any group for leniency. “My response is, ‘Well, OK, so you found them in violation. Now you have to sanction them. How are you going to sanction them in a way that changes this behavior? Are you going to sanction them not to have a disability?’”
What makes this so tricky is that sexual misconduct is still rampant on college campuses. In a 2020 survey of 182,000 students, commissioned by the Association of American Universities, 42 percent said they’d been sexually harassed at school, including a majority of female and transgender undergraduates. More than a quarter of undergraduate women had endured nonconsensual sex, as had 7 percent of undergraduate men.
That report was consistent with years of research chronicling a hostile sexual climate on campus. In 2010, the Center for Public Integrity, in another report, documented the ways in which student victims run into institutional obstacles to justice. Almost half the students interviewed were funneled into secret school proceedings that led to lenient or no penalties. Some schools threatened victims with punishment if they spoke publicly about the proceedings. What’s more, the authors of the report concluded, federal oversight of Title IX enforcement was “overly friendly” to administrators, “which ultimately lets colleges—and rapists—off the hook.”
Back then, when sexual harassment rose to the level of a crime, colleges often punted the case to outside law enforcement, said Laura Dunn, a Washington, D.C., attorney who represents victims (and herself survived a campus rape). If law enforcement didn’t respond, she added, “a lot of schools did nothing and just washed their hands of it.”
In 2011, the Obama administration sounded “a call to action” and outlined a new get-tough approach. In a 20-page letter, the Department of Education’s Office of Civil Rights directed colleges to assess wrongdoing based on a “preponderance of the evidence,” a 51 percent standard. That’s typical for civil cases, but a low bar compared with criminal cases, which require proof “beyond a reasonable doubt.” The letter also discouraged cross-examination in Title IX hearings, saying the confrontation might traumatize the student who filed the complaint. Colleges that didn’t comply could lose federal funding. “The decency of a nation is determined by how we tolerate, or do not tolerate, the abuse of women,” then–Vice President Joe Biden said at the time.
The 2011 letter, said Dunn, provided an urgent corrective to a system that did not protect survivors. It increased public awareness that Title IX covered sexual harassment and violence. “People started filing more Title IX complaints,” she said. “Enforcement action just spiked…. Schools were more often finding students responsible.” That lasted until 2017, when the Trump administration rescinded the letter and substituted its own interim guidance. In 2020 it enacted new regulations that, according to Dunn, have made it harder for survivors to get justice.
But the Obama administration’s letter also had consequences for neurodiverse students, according to Williams of the College Autism Network. (At the time of the letter, she was vice president for student affairs at Wheaton College in Massachusetts.) It panicked college presidents, who along with their general counsels grew reluctant to take more flexible approaches even when appropriate.
That reluctance outlived the letter itself, Williams said, and continues to get communicated down the administrative hierarchy. “A lot of the student-conduct folks are in their late 20s and early 30s,” she said. “They don’t have the experience, the sophistication and nuanced thinking, and the confidence to push back. And so, absent any of those things, they just kind of capitulate.”
When Williams was a college administrator, until 2014, she saw Title IX used in situations that, in her view, didn’t merit its punitive force. “This is like bringing an automatic weapon to a knife fight,” she said she remembers feeling. Working on autism issues, she added, has sharpened her focus: “If I thought Title IX was weaponized for neurotypical students, it’s a nuclear weapon for students with disabilities.”
DUTCHESS COMMUNITY COLLEGE OFFICIALS DECLINED to be interviewed about Handler, the photography professor with Tourette syndrome. “On the advice of counsel, we are advised to refrain from contributing to a story that may have implications for pending litigation,” Peter Grant Jordan, the college’s president, wrote in an e-mail. But the college’s internal documents, along with its response to the lawsuit, make its position clear.
The case against Handler began in October 2019, when he reached across his desk and touched his student. She confided in a friend about the experience, and two days later the friends filed simultaneous complaints based on different incidents. The college convened two separate panels to investigate the allegations.
Both panels concluded that Handler had sexually harassed his students. One went further, alleging a years-long pattern of off-color comments and unsolicited touching. According to the students who testified, Handler wanted to be the “cool teacher.” They said he invited students to smoke marijuana with him and suggested they call him “Kush Daddy.” He allegedly responded to a mention of The Vagina Monologues by saying that he loved vaginas and was “married to a woman with a vagina.” When a student mentioned eating oysters at a restaurant, Handler reportedly said that oysters made his ex-girlfriend horny.
The panel heard that Handler touched women more often than men, and in more sensitive areas, including their chests, thighs, and buttocks. One student said she wanted to disappear after Handler touched her just above, and then just below, her breast. Another student, who also has Tourette syndrome, told panelists she believed that Handler used his diagnosis as a “mask” for inappropriate contact. Dutchess’s attorney concurred: “The conduct alleged by students was not a manifestation of Tourette’s Syndrome,” she wrote in a response to the lawsuit.
Martindale, the North Carolina neurologist, said she has not seen Tourette patients use the disorder as a cover for voluntary misconduct. “I can never say ‘never’ or ‘always’—that’s just kind of the rule in medicine,” she said. “But if there are people out there like that, it’s an entirely different disorder…. Those are few and far between and shouldn’t be confused with Tourette’s.”
In interviews with The Nation, Handler said he never touched sensitive areas and did not single out women over men. Nor, he said, did he invite students to smoke pot with him.
Some of his remarks, Handler said, were misreported or taken out of context. For example, he once brought up sadomasochism after a student had written a report about photographer Robert Mapplethorpe’s still lifes of flowers. (Mapplethorpe’s S&M images were the subject of an unsuccessful criminal prosecution in 1990.) According to the investigative panel, the student claimed that Handler tried to initiate a personal conversation about the sexual practice. Handler said he did no such thing, but rather shared a bit of relevant art history.
Handler agreed that other comments were inappropriate—a product of the disinhibition that, according to researchers, sometimes accompanies Tourette syndrome. Since then, Handler said, he has gone for a neurological workup that included a physical exam and a review of his medical history, symptoms, and medications. He also started taking guanfacine, a prescription drug that helps with impulse control.
Sussman, the attorney, said the investigative process morphed from two accusations into “a frontal attack on Lowell and his character [that] didn’t seem to me to have much to do with getting to the truth.” In a real courtroom, Sussman noted, the defendant faces the accuser. That didn’t happen at Dutchess. “You had no opportunity to cross-examine or even see the accusers, let alone any other witness,” he said. “This gentleman had been there 20 years, and I felt that some modicum of due process—which included the right to confront—was requisite.”
ADVOCATES FOR PEOPLE WITH DISABILITIES, to be clear, are not asking for a pass. “The ADA doesn’t give a right to create a hostile environment, or to harass someone, any more than it gives the right to assault someone,” said Zoe Gross, director of advocacy at the Autistic Self Advocacy Network.
Handler agrees that students should never feel like they’re in a hostile environment. “And I was wrong for partially creating that,” he said. Had he understood the extent of the problem, he said, he might have gotten the workup and changed his medications sooner. And he might have been able to temporarily suppress some of his offensive comments, he said, the way others can delay an involuntary eye blink. (Martindale called this a temporary fix that can trigger more frequent tics later.)
The question is how a college, or an employer, responds when someone’s disability inadvertently creates an unwelcoming campus or workplace. Can an institution ameliorate the situation without resorting to punishment?
“When we are dealing with the civil rights statutes, I think that sometimes we kind of see them as conduct codes,” said Taylor Parker, a Title IX and ADA coordinator who has written about how these two areas of the law intersect. “Actually, the disciplinary response is just one part—and I wouldn’t even say the largest part.” (Parker works for New College of Florida, but said she wasn’t speaking for her employer.) The alternative, she said, is supporting the accuser while also educating the accused. “That means really working with them to understand their own conduct,” she said, “and hopefully to intervene in situations that look like they could end up building into a hostile learning environment.”
Sokolow, from the Association of Title IX Administrators, said that’s what happened at a community college several years ago, where an autistic student was accused of stalking. “He didn’t read the signs that she didn’t want anything to do with him,” Sokolow said. “He followed her around like a puppy dog.” Initially, the woman wanted the college to adjudicate her complaint. “I’m scared to death,” he recalled her saying. “How do I know he’s not going to hurt me?”
With the permission of the male student and his parents, the college disclosed his autism to the woman. “In the meeting, you could watch her whole body just shift,” Sokolow said. “Her face changed. Her fear dissipated.” She agreed to drop the charges—and, in exchange, the student received additional counseling on how to read social cues. It was an amicable ending, Sokolow said. “But it really took a lot to get her to that table. And, ultimately, it had to result in a loss of privacy for him.”
As for the Dutchess Community College case, Handler said the moment for an amicable resolution has passed. His attorney, Sussman, said he anticipates settlement talks. But Handler said that’s not really what he wants. “I want to have my day in court with them,” he said of the administration. “Because I want to teach them a fucking lesson.”