ACLU to White House, Dept. of Ed: ‘Comprehensive’ First Amendment Guidance Needed
January 10, 2013
by Joseph Cohn
Earlier this week, the American Civil Liberties Union (ACLU) sent President Barack Obama 320 pages worth of recommendations for his second term. The expansive document covers a broad range of civil liberties and civil rights executive branch recommendations, including a number of First Amendment issues. Although much of the list relates to issues outside of FIRE's mission, one recommendation in particular caught our attention. In a section titled "Guidance for Public Schools on the First Amendment," the ACLU recommends that:
The Department of Education should issue comprehensive guidance for public schools on their obligations under the First Amendment to include speech and religion, and how these obligations interact with anti-discrimination laws. This should include (a) more clearly drawing the line between the limited cases of constitutionally protected "pure speech" and unprotected bullying and harassment that can rightly present a violation of federal anti-discrimination law if they go unchecked...
FIRE agrees wholeheartedly that the Department of Education—specifically, the Department of Education's Office for Civil Rights (OCR)—should again provide clear First Amendment guidance to public institutions. As FIRE's work demonstrates all too well, too many public colleges and universities currently struggle to meet their dual obligations to maintain discrimination-free educational environments while protecting students' rights to free speech. Indeed, our most recent speech code report, Spotlight on Speech Codes 2013: The State of Free Speech on Our Nation's Campuses, found that 61.6% of the 305 public colleges and universities surveyed maintained policies that clearly and substantially restricted protected speech. That's a shockingly high number of public institutions disregarding their legal obligation to protect First Amendment rights on campus.
OCR has issued guidance reminding colleges to respect free speech before. In fact, in 2003, former Assistant Secretary for Civil Rights Gerald A. Reynolds issued a "Dear Colleague" letter addressing this balancing of rights. That letter explained that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment."
Some readers may be wondering why there is still a problem if OCR already issued this guidance. There are two reasons. First, as discussed above and as FIRE's case archives demonstrate, even with OCR's 2003 declaration, colleges and universities have failed to meet their dual obligations. For example, all too often, institutions maintain anti-harassment policies that fail to track the Supreme Court's carefully crafted definition of peer-on-peer harassment in the educational context as conduct 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." Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). Instead, colleges often enforce broadly-written speech codes that prohibit all kinds of protected speech beyond actual harassment.
The second reason why OCR should follow the ACLU's recommendation and issue new guidance is because the agency created additional confusion in April 2011 when it issued a 19-page "Dear Colleague" letter (PDF) addressing institutions' obligations under Title IX. Unfortunately, the 2011 letter failed to emphasize that anti-harassment policies must be carefully crafted to address harassment without infringing on free speech. This omission has created further confusion and frustrated our efforts to persuade colleges to abandon unconstitutional anti-harassment policies and adopt constitutional anti-harassment policies consistent with Davis in their place.
The ACLU isn't alone in calling for clarification from OCR and the Department of Education. Last May, FIRE sent OCR a letter (PDF) calling for this clarification that was co-signed by 19 professors, individuals, and organizations from across the political spectrum. Moreover, the U.S. Commission on Civil Rights' California Advisory Committee called for similar clarification in a report issued last October.
We're pleased that the ACLU has included this issue on its list of recommendations and we are eager to work with both them and OCR itself to ensure that student and faculty First Amendment rights are honored on our nation's public campuses.