Defending 'Blueprint,' SUNY Lawyer Tells Students, Faculty: 'Trust Us'
June 14, 2013
Andrea Stagg, an associate counsel in the State University of New York's Office of General Counsel, took to Inside Higher Ed yesterday to defend the Departments of Education and Justice's May 9 "blueprint" for college sexual misconduct policies and practices.
I was pleased to see that the blueprint finally has a defender. After all, it's been five weeks since the blueprint's issuance—and while the newly mandated definition of "sexual harassment" has sparked a storm of criticism from commentators, attorneys, professors, and civil libertarians, it's been very difficult to find anyone willing to publicly defend the constitutionality or wisdom of prohibiting protected speech as sexual harassment.
But I was surprised that the blueprint's defense comes from the ranks of university general counsel, let alone counsel of the nation's largest public university system. Given the impossible choice the blueprint's unconstitutional mandate forces upon public universities—violate the First Amendment, or violate Title IX—and the Department of Education's Office for Civil Rights' (OCR's) conspicuous refusal to subject the blueprint's new requirements to public notice and comment, as required by the Administrative Procedure Act, one would expect that university counsel would be particularly frustrated by the federal government's ever-shifting goalposts and onerous compliance requirements.
At any rate, Stagg's argument is disappointingly devoid of substance.
Let's start at the beginning.
"Holding Colleges Responsible" is the latest example in a slew of articles - many of them quoting the Foundation for Individual Rights in Education - that are meant to alarm anyone with a voice, and the author's use of selective quotes out of the Education Department's Office for Civil Rights's response to FIRE only fans the flame.
At issue is whether the Education Department's enforcement of a law and guidance that are designed to promote compliance with Title IX of the Education Amendments of 1972 and prevent sexual harassment put free speech at risk. In particular, the recent cause for concern is language in the agreement between OCR, the Department of Justice, and the University of Montana, which the government called a "blueprint for colleges and universities throughout the country."
Stagg implies that FIRE is somehow being alarmist by publicizing the obvious First Amendment problems with the federal government's decision to define protected speech as "sexual harassment" prohibited by Title IX. Frankly, if you're not alarmed by the prospect of students and faculty being labeled sexual harassers simply for offending the most unreasonably sensitive student on campus, you're either not paying attention or you don't care about freedom of expression. And of course FIRE is going to sound the alarm about an unconstitutional definition of sexual harassment. We're a civil liberties watchdog group! Stagg and OCR might have preferred us to stay quiet—but then again, we would have preferred OCR to recognize the existence of the First Amendment. Remember, neither the findings letter nor the resolution agreement contain any mention of the First Amendment or freedom of expression. OCR only grudgingly acknowledged the First Amendment in the face of public pressure.
As far as "selective quotes" are concerned, Stagg doesn't explain why she thinks that IHE reporter Allie Grasgreen's or FIRE's quotations from the findings letter, resolution agreement, or OCR's response are misleading. Tellingly, the only time Stagg herself quotes any of these documents is in acknowledging that the Departments intended the findings letter and resolution agreement to be a "blueprint for colleges and universities throughout the country."
In the absence of any meaningful or specific engagement with FIRE's arguments or the text of the blueprint itself, Stagg's op-ed is frustratingly unmoored from the source material. She expects readers to simply trust her interpretation of the blueprint—rather than quoting from it directly, so that they are afforded the opportunity to reach their own conclusions. In contrast, FIRE has demonstrated—with repeated and direct references to the texts—how the blueprint contradicts previous OCR guidance, how OCR's response is incompatible with both the blueprint itself and with previous OCR guidance, and how the blueprint violates the First Amendment at length. We are still waiting for any serious argument to the contrary, and Stagg doesn't provide one.
Readers should know that preserving free speech and academic freedom and ensuring an environment free from sexual harassment are not mutually exclusive goals, and OCR has never published guidance or decisions that aim to limit even the most explicitly sexual academic material.
Stagg is correct in one respect. The twin aims of protecting free speech and academic freedom and prohibiting harassment on campus need not be in tension—something FIRE has told OCR many times, most recently in an open letter sent to the agency in May 2012. But the only way to reconcile these two goals is to ensure that sexual harassment is not defined to encompass protected speech, a task at which the blueprint and OCR's response fail spectacularly.
Unfortunately, Stagg fails on this count, too, as she proceeds to attempt to justify "defining sexual harassment broadly":
The issue seems to be the department's acknowledgment that conduct that is not yet severe or pervasive may still constitute sexual harassment. OCR clarified in a letter to FIRE that only severe or pervasive sexual harassment actually violates Title IX. The department's view requires defining sexual harassment broadly and understanding the difference between an institution's obligation to educate and proactively problem-solve and the obligation to "bang the gavel."
The Office for Civil Rights's "Dear Colleague" letter from April 4, 2011 is less concerned with gavel-banging and more concerned with how the complainant is treated during the reporting and grievance process. The outcome sought is the elimination of the hostile environment, if one exists, and maintaining a campus climate free from sexual harassment and violence -- not the termination, suspension, or expulsion of each accused individual.
I'll ask again: If "only severe or pervasive sexual harassment actually violates Title IX," as Stagg writes, then by what authority may OCR lawfully require a public institution to prohibit conduct that does not meet that threshold, particularly when the alleged "sexual harassment" is speech protected by the First Amendment? Remember, the blueprint flatly states that "[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV," and then defines "sexual harassment" as "any unwelcome conduct of a sexual nature," including speech. How can OCR reconcile the blueprint with its clarification on this crucial point? Stagg provides no answers.
Stagg's elaboration—that "[t]he department's view requires defining sexual harassment broadly and understanding the difference between an institution's obligation to educate and proactively problem-solve and the obligation to ‘bang the gavel'"—is irrelevant. When it comes to speech protected by the First Amendment, it doesn't matter what "the department's view" is, or whether that view requires "gavel-banging," or "proactive problem-solving," or "defining sexual harassment broadly." To be clear: Speech protected by the First Amendment cannot be labeled sexual harassment under Title IX. That's the law, no matter how Stagg tries to spin it.
It's also important to note that Stagg makes an error of fact here. She states that OCR responded to FIRE, but that's incorrect. OCR has not responded to FIRE, despite our repeated attempts to contact OCR ever since the April 4, 2011, "Dear Colleague" letter. Instead, OCR sent its recent response to concerned citizens who had contacted the agency directly. Why is this important? Because OCR's "clarification" was not made publicly available by the agency. Unless they're reading FIRE's website, college and university administrators nationwide are unaware that OCR subsequently "clarified" the blueprint.
It is not new for an institution to encourage reporting so that it may determine whether the report warrants action. "See something, say something." Surely not every forgotten bag contains explosives, but because citizen bystanders are not experts with bomb-sniffing German Shepherds, we are encouraged to report what we see.
Stagg's analogy is flawed and betrays a troubling disdain for freedom of expression. Encouraging the reporting of suspicious packages is not akin to encouraging the reporting of subjectively offensive speech. The problem here is the blueprint's expansive definition of sexual harassment. Law enforcement is under no obligation to classify a package as a bomb simply because a citizen has subjectively identified it as such. But under OCR's broad definition, a student's subjective offense—no matter how unreasonable—is enough to classify protected speech as "sexual harassment," which must then be investigated and recorded, with the accused's name listed permanently in a university database. The obvious chilling effect that results is antithetical to the Bill of Rights. Labeling protected speech as "sexual harassment" prohibited by Title IX simply because it offends an unreasonable student violates the First Amendment and is an impermissible means of encouraging reporting.
Setting constitutional harms aside, the fact that the federal government is encouraging students to report feelings of subjective offense as "harassment" bodes ill for our democracy. Teaching students to report protected speech they merely find unwelcome to authorities for mandatory investigation—as though an offensive remark was akin to a bomb-does immeasurable harm to our future leaders' ability to debate and solve the issues of their time.
One might think an attorney working for the SUNY system would recognize the readily apparent problem here, since Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967), one of the U.S. Supreme Court's landmark cases in defense of campus First Amendment rights and academic freedom, was decided against that very university system. Writing for the Court in Keyishian, Justice William Brennan made abundantly clear that the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom" and that the "Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" Id. at 603. I doubt Justice Brennan would tolerate OCR's staggeringly broad definition of sexual harassment and the mandatory reporting system that accompanies it.
Despite OCR's recommendation for broad-based training and notification of sex discrimination definitions and procedures, students and employees are not experts in this area, and they are not expected to be equipped to make a final decision about whether actionable sex discrimination exists. That responsibility falls specifically to the Title IX coordinator or designee under the grievance procedures. By encouraging reporting of unwelcome conduct, the coordinator or designee also has the opportunity to spot patterns, which is a requirement of that job.
Imagine that 10 students report similar instances of sexual harassment (unwelcome conduct of a sexual nature) by another student or an employee that, individually, would not rise to the level of a hostile environment. Together, this conduct is a pattern of sexual harassment behavior that may create a hostile environment in a particular classroom, department or residence hall. Certainly, at the least, it warrants a conversation with and training for the accused individual.
Again, Stagg apparently sees no problem with mandated reporting and investigation of protected speech just because it subjectively offends a listener, and her comfort with this system is extremely troubling. As my colleague Joe Cohn and I wrote last week, the fact that "a public university will be required by the federal government to thoroughly investigate obviously protected student or faculty speech simply because it offended someone" is shocking. For more on the problems with the blueprint's misguided attempt to encourage reporting by deeming protected speech "sexual harassment," check out recent articles by my colleagues Robert Shibley and Samantha Harris.
With regard to Stagg's hypothetical, if 10 students report instances of "sexual harassment" that are actually protected speech—for example, voicing criticism of or support for a planned "Slutwalk"—a public institution cannot require the accused student or faculty member to undergo "training." Further, by aggregating student complaints about an individual, Stagg discounts the key component of OCR's definition of hostile environment harassment: that the allegedly harassing conduct actually denies or limits a student's ability to participate in school activities. The findings letter (PDF) explains:
To determine whether a hostile environment based on sex exists, the United States considers whether there was harassing conduct that was sufficiently serious—that is, sufficiently severe or pervasive—to deny or limit a student's ability to participate in or benefit from the school's program based on sex. [Emphasis added.]
The conduct described in Stagg's hypothetical does not deny or limit any student's ability to participate or benefit from the school's program—as Stagg notes, the conduct "individually would not rise to the level of a hostile environment." OCR's 2001 Revised Sexual Harassment Guidance notes that "persistent unwelcome sexual conduct still may create a hostile environment if directed toward a group"—but it must still deny or limit those students' ability to participate or benefit from the school's program. And of course, the 2001 Guidance makes clear that "the protections of the First Amendment must be considered if issues of speech or expression are involved," and that "the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX."
Finally, Stagg concludes:
The Education Department and higher education administrators are well aware of the First Amendment and academic freedom. Encouraging the campus community to report instances of sexual harassment and leaving the evaluation of such reports to designated experts is appropriate and lawful.
This final paragraph encapsulates Stagg's message to students, faculty, alumni, and citizens concerned about protecting campus speech from censorship: "Trust us! We are 'well aware' of the First Amendment and academic freedom! You have nothing to worry about!" Stagg seems to have forgotten that the animating impulse behind the Bill of Rights was a distrust of government authority with regard to core civil liberties like freedom of expression.
Stagg's reassurance rings hollow, particularly given the long and shameful history of campus censorship based on overbroad and vague harassment policies. Should Alex Myers, a student at the State University of New York College at Oswego suspended for "harassment" after writing a letter to rival schools' hockey coaches, have just trusted that administrators would eventually figure out that his speech was protected by the First Amendment? He would likely have been waiting a long time. Luckily—after intervention from FIRE and a well-deserved public shaming for SUNY Oswego—the charges were dropped. Otherwise, Stagg might have had the chance to make her "trust us, we're ‘well aware' of the First Amendment" argument in federal court, defending SUNY Oswego administrators.
Stagg's defense of the blueprint is unpersuasive and depressingly comfortable with defining protected speech as sexual harassment. Instead of answering concerns about freedom of expression, her dismissive attitude towards the First Amendment creates serious worries about how the federal government's mandate will be received on SUNY campuses this fall.