May 23, 2013
In an article for The Chronicle of Higher Education published today, attorney Hans Bader elaborates on some of the repercussions of the Departments of Education and Justice's new federal "blueprint" for campus sexual misconduct policies, which defined sexual harassment as "any unwelcome conduct of a sexual nature."
Bader, who was formerly with the Department of Education's Office for Civil Rights, cites several cases in which courts have held that charges of sexual harassment on campuses must include an element of objective offensiveness. Without that element, Bader explains, sex education classes and even attempts at dating are risky. He paraphrases an example from education writer Joanne Jacobs:
[I]f a professor discusses a sexual issue, like HIV transmission through anal sex,  making one of his 500 students uncomfortable ... he's a sexual harasser.
If that doesn't hit close enough to home for college students, consider this insight from Bader:
Defining any romantic overture as harassment merely because it turns out to be unwelcome—even if it only occurred once, and was not repeated after its unwelcomeness became known—has dire implications for dating. Since no one is a mind reader, the only way to avoid ever making an "unwelcome advance" is to never ask anyone out on a date. That undermines freedom of intimate association.
Bader concludes that in "defining speech as reportable 'sexual harassment' even when it does not offend a reasonable person, the Education Department has cast a dark cloud over academic freedom and the ability to debate important issues about sexual morality, norms, and roles that may offend some listeners."
Read the rest of his opinion piece at The Chronicle of Higher Education.
May 23, 2013
Since the Departments of Education and Justice released their new "blueprint" for campus sexual misconduct policies on May 9, FIRE and other free speech advocates have done their best to explain exactly what the ED and DOJ have done and why it is so dangerous for free speech and due process on campus. With scores of pages of directions from these agencies, much of it conflicting with past guidance from the Department of Education's Office for Civil Rights, it is understandable that there are misunderstandings about this blueprint. That said, writers reporting on the matter should be exceedingly careful not to downplay what is a significant and harmful development.
In a May 18 article ("Feds rooting out 'unwelcome speech' on campus: But what is that?") for The Christian Science Monitor, Patrik Jonsson reviews reactions to the blueprint. Before relaying the responses of various free speech advocates to the blueprint, Jonsson errs in his reading of the documents (emphasis added):
To be sure, the new rules still require that sex crime allegations suggest either pervasive or severe acts or language, and still require an objective standard before allegations are upheld, according to the Department of Education's letter to the University of Montana.
This is incorrect. The findings letter explicitly states on page 9 that it is "improper [to] suggest that the conduct does not constitute sexual harassment unless it is objectively offensive." One of the policies that the ED and DOJ ordered UMT to revise prohibited only conduct that was sufficiently offensive as "determined from the perspective of an objectively reasonable person of the same gender in the same situation." According to the ED and DOJ, this policy is fatally flawed and must be revised because "[w]hether conduct is objectively offensive ... is not the standard to determine whether conduct was 'unwelcome conduct of a sexual nature' and therefore constitutes 'sexual harassment.'"
In other words, according to the blueprint, the fact that speech is subjectively offensive to a listener—even if that listener is being unreasonable or hypersensitive—can render that speech "sexual harassment," regardless of whether it is objectively offensive. The ED and DOJ need to realize that the Constitution does not allow such a broad restriction on speech and expression. And citizens and reporters need to be aware of what the ED and DOJ have done.
May 23, 2013
"Syracuse University tried to derail my legal career simply because of a blog that satirized life in law school."
In 2010, Syracuse University College of Law (SUCOL) student Len Audaer was summoned to a meeting with Associate Professor of Law Gregory Germain, where he was told he was being investigated for "extremely serious" charges, which included allegations of "harassment."
The charges being investigated stemmed from Audaer's alleged involvement with SUCOLitis, an anonymous, satirical blog about life in law school meant to emulate The Onion.
"[The posts] were extremely frivolous in nature and there was nothing malicious about [them]," says Audaer in FIRE's latest video. "They were designed to just lampoon everyday life. We had one about our class president being elected out and being replaced by a beer bong. It was very popular with a lot of students at the time. People liked that it was a little break in the monotony of what's a pretty dull experience at times at law school."
Despite the light-hearted nature of the posts, a disclaimer posted on the website indicating that "no actual news stories appear on the site," and a lack of clear evidence of Audaer's involvement with the site, the university pursued its investigation for 120 days, during which time SUCOL proposed a gag order to prevent Audaer or his attorney from talking publicly about the case, as well as to prevent any media outlets from reporting on it.
It was only after Audaer got in contact with FIRE that the university began to back down.
"Because of FIRE," says Audaer, "Syracuse University College of Law stopped prosecuting me for exercising my right to free speech."
Following Audaer's ordeal at SUCOL, he transferred to Northwestern University Law School. After graduating in December 2012, Audaer joined FIRE's Legal Network, offering his legal services to students who, like himself, are victims of censorship on campus.
This video is the second installment in FIRE's two-part video series about free speech violations at Syracuse University, a school that has been on FIRE’s list of serial violators of student and faculty free speech rights for some time now. In 2011 and 2012, the school was featured prominently on our annual Huffington Post "Worst Colleges for Free Speech” list.
For a complete transcript, please visit: http://thefire.org/article/15730.htmlFor more details on this case, please visit: http://thefire.org/case/845.html
May 23, 2013
Last week in an article for USA TODAY titled "New sexual harassment guidelines a positive step," Melanie Kruvelis followed in the footsteps of the Departments of Education and Justice by failing to distinguish between harassment—however it is defined—and physical assault.
She observed that the federal "blueprint's" (PDF) newly mandated definition of sexual harassment—that is, "any unwelcome [verbal or physical] conduct of a sexual nature"—"hasn't been sitting well with free-speech advocates." Kruvelis even acknowledged the possibility of innocuous speech like requests for a date falling under this new definition.
"But what the First Amendment champions are missing is the silencing of sexually violated men and women across the country today," she counters.
On the contrary, what the ED, the DOJ, and Kruvelis herself are missing is that university policies mirroring this definition, which silence a significant amount of protected speech, will eventually lead to the silencing of everyone—including sexually violated men and women across the country.
First, Kruvelis points to examples of rape cases as evidence that this change in harassment policy is necessary. In one case, an advisor suggested that an alleged rape victim should leave school. In another, a lack of physical evidence prevented a case from going forward. How would additional limits on student speech prevent these problems in the future?
Kruvelis asks, "[I]s the off-chance that someone will report an innocuous question worth sacrificing the knowledge that rape survivors have someone to turn to at their school?" Putting aside the author's blithe dismissal of the chilling effect that such regulations will have, this is an apples-to-oranges comparison. Expanding the definition of sexual harassment to include protected speech (which, needless to say, is not assault) will not help protect victims of sexual assault, particularly after the fact. If anything, limits on speech about sex will impede the frank discussions that will be necessary to combat the problem of sexual assault in a meaningful way. We have already seen this happen in the case of Landen Gambill, the University of North Carolina at Chapel Hill student who was charged with intimidating the person she had accused of sexual assault (he was found not responsible for that assault—a result with which she disagreed) while criticizing UNC's handling of her case.
Further, Kruvelis seems to use the words "harassment" and "assault" interchangeably, focusing in her headline on "harassment guidelines" but referring in her first sentence to "an issue plaguing campuses all across the country: sexual assault." She is conflating issues, and to some extent it's no wonder—two United States federal agencies have done so as well. Let's not forget that former Montana Supreme Court Justice Diane Barz, after her investigation, found (PDF) that the University of Montana "has a problem with sexual assault." (Emphasis added.) But rather than simply addressing the problem of policies and procedures relating to assault (and FIRE has significant concerns over those changes), the ED and DOJ used this finding to justify limiting free speech to that which will never make anybody uncomfortable.
By expanding the definition of sexual harassment to include protected speech, the Departments of Education and Justice have taken not one step forward, but two steps back.
Oakland University's Motion to Dismiss in 'Hot for Teacher' Case Relies on an Unconstitutional Speech Code and Shows Its Lack of Regard for the First Amendment
May 22, 2013
Last week, I blogged about Oakland University's motion to dismiss in Joseph Corlett's lawsuit against the university for violating his First Amendment rights. Corlett, as Torch readers may recall, is the student who was found guilty (PDF) of "unlawful individual activities" for writing an entry called "Hot for Teacher" in his class journal (PDF). Corlett was suspended for three semesters and subjected to other disciplinary measures because he wrote about his professor being like the character Ginger from the television series Gilligan's Island, as opposed to the character Mary Ann, as well as other mildly suggestive musings. A full recap of Corlett's ordeal is available here and here.
Corlett sued Oakland in March 2013. On April 30, Oakland filed a motion to dismiss. FIRE believes it is important to understand why its legal arguments are not only weak but misrepresent basic principles of First Amendment law.
Last week we explained how Oakland's conflation of the expressive rights of college students and fifth-graders and its claim of unfettered discretion to discipline students for their speech ignores both the First Amendment and due process rights. But Oakland does not stop there. Its brief is flawed for two other important reasons.
Oakland Relies on an Unconstitutional Speech Code to Suppress Corlett's Speech
Oakland defines discriminatory harassment as "any physical or verbal behavior, including but not limited to sexual advances or requests for sexual favors, and any written behavior ... that stigmatizes or victimizes an individual on the basis of race, sex, sexual orientation, age, height, weight, handicap, color, religion, creed, national origin or ancestry, marital status, familial status, veteran status, or other characteristics not permitted by law." Over 20 years ago, the same federal district court where Corlett filed his lawsuit held that a similarly overbroad policy prohibited speech that universities like Oakland are both legally and morally bound to protect. Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (striking down a speech code because a university cannot suppress constitutionally protected speech when prohibiting discriminatory harassment). Moreover, Oakland's policy is so vague that students have no way of knowing whether their speech might inadvertently run afoul of the policy.
The easiest way to see how this policy violates the First Amendment is to compare it to the legal standard for peer harassment in an educational setting, as established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). In Davis, the Court defined actionable harassment as unwelcome discriminatory 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." Id. at 633. Although the Davis case sets a standard for peer-on-peer sexual harassment, where there is no power differential between the parties, it is also applicable in the student-teacher context: here, the professor is the position of power over her supposed harasser. That makes the rationale for punishing Corlett even weaker.
However embarrassed Corlett's professor may have felt when she read Corlett's journal entries, his actions cannot be described as "severe" or "pervasive" enough to meet the Davis threshold. Nor can comparing an adult woman to a 1960s sitcom character be considered objectively offensive. And as the Doe court made clear, even if "large numbers of people" found Corlett's journal to be "gravely" offensive, the University still would not be able to proscribe his speech. Doe, 721 F. Supp. at 863. Finally, there is no evidence that she felt so harassed that she could no longer operate on campus. Corlett's daybook simply does not constitute harassment as defined by the Supreme Court.
An aside: On May 9, the Departments of Justice and Education sent a letter to the University of Montana that is intended as "a blueprint for colleges and universities throughout the country," in which it declared that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). Because this definition is blatantly unconstitutional for reasons explained here and here, it does not affect the legal analysis—and should not affect the outcome—in this case.
Corlett's daybook is at the core of speech protected by the First Amendment precisely because others could find it distasteful, offensive, or puerile. Oakland nevertheless tries to characterize his journal entry as workplace discrimination, namely "discriminatory, harassing, and intimidating conduct," which necessitates protection of employees from harassment by non-employees. The university supports this argument with a string of cases involving private workplaces where First Amendment rights are not implicated. However, the Supreme Court made clear in Davis that the standard for harassment in the educational setting is not the same as in the workplace. And the Doe court noted that unlike a business, where efficiency is crucial, a university must champion free expression because "the free and unfettered interplay of competing views is essential to the institution's educational mission." Doe, 721 F. Supp. at 863. Corlett is a student with full First Amendment rights on a public university campus, so workplace cases are irrelevant here. Corlett's few journal entries about his professor's appearance are not so "severe, pervasive, and objectively offensive" that they have the impact required by Davis, and thus they are protected by the First Amendment.
Oakland's Smear Tactics Cheapen the Importance of the First Amendment Issues at Stake Here
Oakland's final insult to the First Amendment is to attack Corlett personally and to caricature his journal entries, hoping that if the court doesn't like the speaker, it might be more inclined to allow Oakland to silence his speech. Thus, we are introduced to Corlett as "an adult male who came to the college environment after decades of working in the construction industry"—and we're all familiar with the stereotype of the boorish construction worker. And he likes guns: "A later entry details how Corlett "sleep[s] nude, [but] only feel[s] naked without [his] gun on the nightstand." The brief also insinuates in several places that he is callous to the feelings of his wife, and repeats three times that Corlett compared his professor to Ginger from Gilligan's Island ("an oversexed caricature from a sitcom"), as though that should decide the case in itself.
Cheap shots like these generally are a red flag for a weak legal argument. But Oakland is not just a garden-variety litigant. It's a government entity trying to smear a private citizen in an effort to justify punishing his speech. At the same time, it's sending a warning to others on its campus who might dare to say something Oakland doesn't like. The First Amendment is designed to prevent government from silencing individual voices, which is why this case is very serious, despite what may seem at first glance to be facts tailor-made for a late-night comedy show.
FIRE is monitoring it carefully.
May 22, 2013
Newspaper in Chains - Shutterstock
As the nation focuses on the news about the Department of Justice's monitoring of the Associated Press (and other reporters), it's easy to forget that many student media outlets routinely endure egregious treatment from administrators at their schools. But yesterday, writers Devin Karambelas and David Schick penned a spot-on article for USA TODAY reminding us of just that:
Student newspapers often deal with many questionable — and sometimes downright illegal — actions from administrators who shut down operations over an explicit sex issue, campus safety officers who refuse to provide any criminal records (including of a sexually violent nature), student government associations that cut print funding in retaliation and colleges that avoid open-record laws to conduct presidential searches in secrecy.
Karambelas and Schick, who are listed as "collegiate correspondents" for USA TODAY (and are likely students themselves) may well have experienced this firsthand, as FIRE has seen many cases where such strategies are used by administrators to interfere with freedom of the student press.
For instance, the authors describe what happened at Central New Mexico Community College (CNM) earlier this year as a perfect example of the kinds of difficulties student newspapers face from administrators. Upon the release of a sex-themed issue, administrators at CNM shut down the campus newspaper, The CNM Chronicle, and pulled its issues from racks across campus, claiming that their motivation was to protect a minor who had been questioned in the issue (The Chronicle had obtained parental permission to print her answers). Though the administration later reinstated the paper after receiving a letter from FIRE, CNM faculty are still displeased with the lack of apology or affirmation of the First Amendment from their administrators.
An equally chilling threat to free press came to us from Stanford University last week. In the Stanford Daily, editor in chief Miles Bennett-Smith writes of an email he received one morning this month—along with a follow-up call 20 minutes later—in which an administrator accused the newspaper of printing a libelous story. Though Bennett-Smith knew his free press rights, he points out that the email itself seemed intimidating:
And while I have no way of knowing whether or not the actions of the senior official who contacted me were at the direction of the general counsel or any other group of University administrators, they felt and read strongly like intimidation.
In fact, after I noted that The Daily had done its due diligence and was neither malicious nor negligent in its coverage of the story, the official was very agreeable. But that does not make the email go away nor change the tone of what read as a threat of a lawsuit should The Daily not take the story down and redact the names of the officials alleged to have done wrong.
Though FIRE has not seen a case of administrators demanding the phone records of student newspaper offices, many of the actions taken by college officials—from blatant censorship to implied threats—do much to stifle the free press rights of students on campus. Unfortunately, an administration keeping tabs or trying to control a media outlet is not something limited to the Associated Press; it begins much earlier than that.
May 21, 2013
Here's today's press release:
ORLANDO, Fla., May 21, 2013—The University of Central Florida (UCF) has reinstated Professor Hyung-il Jung three weeks after unconstitutionally suspending him on the basis of an in-class joke. FIRE wrote to UCF President John C. Hitt in April, urging this result and reminding UCF of its First Amendment obligations.
On April 23, Jung, a lecturer in UCF's Rosen College of Hospitality Management, was leading an exam review session with roughly 25 students in an accounting course when, according to the Orlando Sentinel, he stated: "This question is very difficult. It looks like you guys are being slowly suffocated by these questions. Am I on a killing spree or what?" A student in the review session reported the joke to the UCF administration, which issued Jung a reprimand letter on April 24, suspending him from "all ... university duties," barring him from the Rosen College campus, and prohibiting "contact of any nature, with any students, for any reason." UCF additionally demanded that Jung undergo a "thorough mental health evaluation" and obtain written certification from a medical professional that he was "not a threat to [himself] or to the university community."
FIRE wrote to UCF on April 26, reminding the university of its duty to protect Jung's First Amendment rights and making clear that his in-class joke in no way constituted an unprotected "true threat." In Virginia v. Black (2003), the Supreme Court defined true threats as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."
Days later, UCF informed Jung that he would not be required to submit to a mental health examination. UCF formally reinstated Jung on May 13, nearly three weeks after it suspended him. Jung will teach a course at UCF this summer.
"We're pleased that Professor Jung's ordeal is finally drawing to a close," said FIRE President Greg Lukianoff. "It was outrageous, however, for UCF to have suspended him in the first place. No reasonable person could have felt threatened by Professor Jung's joke. And it is downright chilling that UCF demanded he submit to mental health counseling because of his clearly protected expression. UCF must expunge this incident from Jung's record and ensure that neither he nor any other faculty member or student will be punished for speech protected by the First Amendment."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.
Peter Bonilla, Associate Director, Individual Rights Defense Program, FIRE: 215-717-3473; email@example.com
May 21, 2013
The Miami Herald's Glenn Garvin wrote yesterday to emphasize what's at stake following the Departments of Education and Justice's May 9 federal "blueprint" letter defining sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct."
Garvin points out that under this broad definition, William Shakespeare may be persona non grata on campus. He explains:
Who gets to define "unwelcome"? The listener and the listener alone — no matter how high-strung, neurotic or just plain pinheaded that person is. I can understand why you might suspect I'm extrapolating or exaggerating here, but really, the feds' letter is quite explicit: the words don't have to be offensive to "an objectively reasonable person" to be considered harassment.
To demonstrate the real threat to speech from overly broad harassment codes, Garvin takes a look at past instances of enforcement that will be very familiar to FIRE supporters:
But surely, you say, surely nobody will take the letter of the law to such absurd extremes. And surely you are wrong: They already have. ... A janitor at Indiana University-Purdue University Indianapolis was disciplined for reading a disapproving book on the Ku Klux Klan. Marquette ordered a graduate student to remove a "patently offensive" quotation by Dave Barry from his door. (Let's see if my editors are brave enough to print it: "As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.")
Indeed, Shakespeare, an author "whose works include 113 synonyms for genitalia" (they've been counted) is probably not safe under ED and DOJ's new mandate.
Read the rest of Garvin's article in The Miami Herald.
May 20, 2013
Last Thursday night at a special Tennessee Senate panel meeting, University of Tennessee System President Joe DiPietro and state Senator Stacey Campfield shared their respective opinions on UT's use of student fees to support student-run "Sex Week" events.
Torch readers might remember that earlier this year, private donors saved Sex Week after the school rescinded $11,000 originally set aside for the occasion. $6,700 in student fees were still used to fund the events.
The Associated Press reported that Campfield "suggested ... that students should be able to opt out of their fees being used to pay for events they find objectionable." FIRE has written before about the imprudence of creating an opt-out system for student fees. In response, DiPietro emphasized that the university must disburse fees for speakers without consideration of the content of their messages, saying "While I may have personal views about some of those topics, I have a professional obligation to keep our university in a position that complies with the First Amendment of the U.S. Constitution."
According to the Knoxville News Sentinel, "Campfield compiled a list of paid speakers at UT in the past three years that he said, with one or two exceptions, appeared to be 'left-leaning people.'" This, he said, shows "there probably seems to be some content bias." But DiPietro noted that many conservative speakers have spoken on campus for free and thus wouldn't be on the list. Further, he explained that regardless of the list, "[o]rganizations need to apply in order to gain or secure the funding." DiPietro said that UT's Republican group hasn't requested funding for speaker fees in the last three years.
As reported in the Sentinel, Campfield's objections to Sex Week continued:
Campfield, who has sponsored failed legislative efforts to ban elementary and middle school teachers from addressing gay issues, said he also worried that underage children attending the university would have access to adult material.
DiPietro said that at the time of Sex Week, six of 27,000 UT students were under 18, and that all students should be "treated the same."
It looks like this will be an uphill battle for Campfield—as it should be. According to State Senator Joey Hensley, the chairman of the panel, the Senate Higher Education Oversight Subcommittee will prepare a report for the Senate Education Committee, which could be used to guide the legislature next year. For now, Hensley remarked, "We've talked about it enough."
May 20, 2013
Since the Departments of Education and Justice sent out their letter outlining a new, censorship-laden "blueprint" for campus sexual harassment policies on May 9, free speech advocates, commentators, and news outlets have strongly and swiftly voiced their objections and concerns and explained why the letter's mandates are unconstitutional. But not everyone is jumping into the debate—for instance, the Department of Education itself.
In an article covering responses to the letter, the Washington Free Beacon reported its experience with the Department of Education last week:
The Washington Free Beacon asked the DOE for comment. They responded, asking for guidance as to where the word "speech" appeared in their letter to the university. The Free Beacon referred them to the page of their letter that now defined sexual harassment to include "verbal conduct."
After that email exchange, they did not respond to further requests for comment.
The Washington Free Beacon should certainly not take this personally. FIRE and the American Association of University Professors (AAUP) have previously written several times to the Department of Education's Office for Civil Rights, and we've received no answer—for more than two years.
So readers, please do us a favor and write to the Departments of Education and Justice about this important matter—and of course, let us know if they respond. Maybe you'll be the first to hear back from these public servants!