'Unlearning Liberty': Harassment Codes Often Abused to Censor
June 6, 2013
by Nico Perrino
Last month, when the Departments of Justice and Education joined together to mandate that virtually every college and university in the United States adopt speech codes that violate the First Amendment and decades of legal precedent, many were justifiably shocked. UCLA law professor and popular legal blogger Eugene Volokh said that the new mandate creates "a very dangerous situation," Washington Post columnist George Will wrote that it will encourage "censorship regimes" on campus, and Atlantic columnist and civil libertarian Wendy Kaminer didn't mince words when she called it "an educational nightmare."
Less surprising, perhaps, than the federal government's attempt to mandate unconstitutional speech codes on nearly every college campus is the mechanism it has chosen to do so. The mandate comes in the form of a findings letter and agreement among the DOJ, ED, and the University of Montana (UMT) to address several allegations of sexual assault on the university's Missoula campus. As part of the mandate, which expressly touts itself as a "blueprint for colleges and universities throughout the country," the feds write that in order to fulfill its requirements under Title IX, UMT must adopt a sexual harassment policy that prohibits "any unwelcome conduct of a sexual nature," including "verbal conduct" (read: speech).
For those who have read FIRE President Greg Lukianoff's recent book Unlearning Liberty: Campus Censorship and the End of American Debate, it should come as no surprise that the government would use harassment rationales as its vehicle to combat speech that it disfavors. As Greg writes in the book, since campus speech codes began being adopted in the late 1980s and early '90s, "The most common legal theory behind [them] was one that characterized some kinds of protected speech as punishable harassment." For example, a Northern Arizona University speech code from 2005 included within its definition of prohibited harassment "stereotyping" and "negative comments or jokes." Another harassment code at Drexel University from 2006 prohibited "inconsiderate jokes" and "inappropriately directed laughter." And, eschewing any attempt at providing students an idea of what conduct might be prohibited, a harassment policy at Florida Gulf Coast University from 2007 prohibited simply "expressions deemed inappropriate."
Given its lack of success in the court of law and the court of public opinion, one might expect that the "protected speech as harassment" legal theory would have died out by now. But as Greg points out:, "The story of harassment codes on campus is largely one of universities brazenly ignoring the right to free speech and the law concerning harassment as they pass speech codes that, when challenged, are almost laughed out of court."
"Since 1989, there have been nearly two dozen court cases involving campus speech codes," writes Greg. "Almost all of them have challenged a substantially overbroad harassment code, and virtually all of these challenges have been successful."
The 1989 decision Greg is referring to is a case out of the Eastern District of Michigan, Doe v. University of Michigan, the first legal challenge to a speech code of its kind. In that case, a federal district court permanently enjoined the University of Michigan from enforcing its Policy on Discrimination and Discriminatory Harassment on the grounds that it was overbroad on its face and as applied. In addition, the court found that the policy was so vague that enforcing it would violate the due process clause of the Fourteenth Amendment. The policy prohibited, among other things, "[a]ny behavior, verbal or physical, that ... [c]reates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities."
FIRE itself has coordinated litigation that resulted in the defeat of many university harassment codes. Perhaps most on point with the federal government's new edict is the United Statess Court of Appeals for the Third Circuit's decision in DeJohn v. Temple University (3d Cir. 2008), which saw the defeat of Temple University's sexual harassment policy prohibiting "generalized sexist remarks and behavior." The Third Circuit struck down this policy on First Amendment grounds, finding it to be impermissibly overbroad because it "provide[d] no shelter for core protected speech."
In taking its lead from colleges and universities that for years have ignored a continuous string of legal defeats for overbroad and vague harassment policies, the federal government is setting up its new national speech code for a similar fate.
The fate is avoidable, however. All that the federal government has to do is adopt the definition of sexual harassment in the educational context already provided by the Supreme Court. In Davis v. Monroe County Board of Education (1999) the Court defined student-on-student harassment in the educational context as unwelcome behavior directed at a person because of his or her race or gender that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities."
Bingo. A workable definition. As Greg writes in Unlearning Liberty, "The Davis standard expertly balances legitimate concerns about actual discrimination and harassment with protection of free speech, while not overburdening universities with unrealistic obligations to police every aspect of their students' lives."
But the Department of Education's Office for Civil Rights (the office that signed the new federal speech code mandate and is tasked with investigating Title IX complaints) has repeatedly refused to accept this definition, instead opting for a broader, unconstitutional definition that Greg writes in his book "has effectively encouraged campus officials to punish speech they simply dislike."
The dangers posed by college and universities' (and now the federal government's) repeated disregard for the First Amendment when drafting their harassment policies are not hypothetical. In Unlearning Liberty, Greg devotes a whole section to these dangers. He tells the story of Keith John Sampson, a student at Indiana University-Purdue University Indianapolis, who was found guilty of racial harassment for merely reading a book about the Ku Klux Klan in public. (Ironically, the book was about the defeat of the Klan when they marched on Notre Dame in 1924.) There's also the student at the University of New Hampshire who was kicked out of his dorm room and forced to live in his car after being found to have violated the school's harassment policy, simply for making a flyer that poked fun at the "freshman 15." And, more recently, in 2011, a University of Denver professor was declared guilty of sexual harassment just because the content of his class, "The Domestic and International Consequences of the Drug War," was deemed too salacious.
"The most pervasive myth about campus censorship and speech codes," writes Greg, "is that this war was fought long ago and free speech won." The feds' speech code mandate confirms Unlearning Liberty's argument that this myth is indeed just that: a myth. The mandate has reawakened the American public to the threats to free speech on campus posed by overly broad harassment codes. But in order for citizens, students, faculty, alumni, administrators, trustees, and citizens to successfully fight back against this and other violations of rights on campus, they should understand how we got here by checking out Unlearning Liberty.
Unlearning Liberty: Campus Censorship and the End of American Debate is available in print, digital, and audiobook format from Amazon.com. All proceeds from the book directly support FIRE and its mission.