Four Key Points About Free Speech and the Feds' 'Blueprint'
July 15, 2013
It’s been more than two months since FIRE and the higher ed community were shocked by a letter issued jointly by the Departments of Education and Justice to the University of Montana. FIRE staff have blogged extensively about the Departments’ “blueprint” for campus sexual harassment in the last 10 weeks, but there are four crucial points that I believe bear special emphasis.
1. Overbroad and vague harassment rationales have been the primary justification and legal theory behind campus speech codes since the 1980s.
In one sense, the attempt to stretch the definition of harassment beyond all recognition is nothing new. Speech codes came into vogue on campuses in the 1980s and 1990s, and many of them (and ALL of the speech codes that were initially struck down by courts) were based on expansive definitions of harassment. Starting in 1989 with Doe v. University of Michigan and continuing through successful challenges at my alma mater, Stanford University, and most recently at the University of the Virgin Islands, harassment-based speech codes have suffered a series of well-deserved defeats in court over the past 25 years.
In fact, the abuse of harassment rationales by universities became so widespread that in 2003, ED issued a clarification letter to instruct colleges across the country that harassment, properly defined, requires a serious pattern of conduct and that harassment-based speech codes could not be used to censor and punish speech protected by the First Amendment. Yet, as my colleagues have carefully documented, the May 9 blueprint contradicts OCR’s 2001 Guidance and its 2003 clarification letter. Most notably, there is no mention of “free speech,” the First Amendment, or the 2003 clarification letter in the May 9 DOJ/ED letter.
2. “Harassment” charges have been the weapon of choice against unpopular, dissenting, and in some cases comparatively innocuous speech on campuses for decades.
While Unlearning Liberty provides scores of examples of the abuse of harassment allegations on college campuses, that’s only a small fraction of the cases with which FIRE has dealt over the years. As I discussed in a Wall Street Journal op-ed, cases include one at Tufts University in which a student publication was found guilty of racial harassment for publishing true, if unflattering, facts about radical Islam, and, more recently, one at the University of Denver in which a professor was found guilty of harassment because of the necessarily taboo topics covered in his class about, well, taboos.
One stunning example that got cut from the Wall Street Journal piece at the last minute occurred last fall, when a student at SUNY Oswego was accused of harassment and faced suspension because, as part of a class assignment, he emailed local hockey coaches and asked for their opinion of Oswego’s hockey coach. A rival coach—not even the one in question—found the email “offensive” because the student told recipients that they didn’t need to feel obliged to say only nice things about the Oswego coach. The rival coach’s complaint was enough to get the student suspended and kicked off campus. Fortunately, FIRE intervened, and Oswego changed course in the face of public ridicule.
Then, of course, there are the “classic” FIRE examples of the student who was found guilty of racial harassment for publicly reading a book, the student who was kicked out of the dorms for making a joke about the “freshman 15,” and the student disc jockey who was found guilty for cracking jokes about his own mother on his radio show. The list goes on and on.
Even this short list of FIRE cases makes one thing crystal clear: When speech is not clearly and decisively protected, no point of view is safe. Whether the speaker’s views are liberal or conservative, or have nothing to do with politics, if a university administrator has a speech code and the willingness to use it to silence speech, the speaker is vulnerable.
3. DOJ and ED’s new argument that its new definition is only to “encourage reporting” is wrong.
On May 30, in the face of blistering criticism, OCR attempted to walk back the blueprint. OCR claimed that its broad definition of sexual harassment was simply designed to encourage reporting. But that is not what the blueprint says. The blueprint mandates an investigation of each allegation with the ultimate goal of eliminating sexual harassment (as broadly defined). In fact, the blueprint even envisions allowing an alleged harasser to be punished before an investigation is complete—hardly a simple reporting provision.
And even if OCR were not being disingenuous on this point, such monitoring of speech is still unconstitutional. Mandating that state and private employees must report protected expression to authorities as “harassment” is no more acceptable than requiring the reporting of “unpatriotic” speech as treason or “irreverent” speech as obscenity. The chilling effect of such a requirement is obvious and would never pass constitutional muster. As FIRE Senior Vice President Robert Shibley argues in an essay published by Forbes, the claim that this new requirement “is just to encourage reporting” does not stand up to law or common sense.
4. Harassment standards do not stay confined to sex.
Although I pointed this out in my Wall Street Journal article, it bears repeating: This is not just about failed attempts at flirting or unsuccessful requests for a date (though, by the plain language of the new standard, it can include these as well). As my colleague Azhar Majeed recently chronicled in The Huffington Post, harassment is used to punish a breathtakingly wide array of disfavored speech. Don’t like students blogging satirically about your law school? You can follow Syracuse University’s example and launch an investigation for harassment. The University of Central Florida used a harassment rationale to discipline one student who called another “a jerk and a fool” on Facebook. Purdue University Calumet used harassment to justify trying to silence a faculty critic of Islam, based on a Facebook post and 16 selectively-edited minutes taken from 40 hours of classroom instruction. Under the feds’ new definition, nearly everything is arguably harassment—from sophomoric, if tame, jokes, to what books students read, to what actually gets taught in class. And this will all be decided on the basis of the broadest possible definition of sex and gender, which inevitably expands to race, ethnicity, and religion. This has been an ongoing problem on campuses for decades. The fact that ED and DOJ have stepped in serves only to make the situation far more confusing and campus administrators far more likely to overreact.
Thank you for following The Torch to keep up with the problems with the new ED/DOJ “blueprint.” We at FIRE can’t fight this latest threat to campus free speech alone. Please consider contacting your alma mater to see if they intend to stand up to this new unconstitutional standard from ED and DOJ. Or you can contact the Departments directly here.
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