May 24, 2013
In light of the Departments of Education and Justice's new federal "blueprint" for campus sexual harassment policies, David Moshman, a professor of educational psychology at the University of Nebraska-Lincoln, writes for The Huffington Post today to share a story that would be funny if it weren't true.
At the University of Nebraska-Lincoln (UNL) a psychology graduate student named Toni Blake studied and taught human sexuality.
One day in 1993 Blake brought a banana to a class session on contraception and used it to illustrate the application of a condom. Warning about the danger of impregnation prior to ejaculation, she joked that men, like basketball players, "dribble before they shoot."
A male student was not amused. He subsequently accused her of sexual harassment, charging that she "objectified" the penis and thus created a hostile academic environment for him as a man.
This is exactly the sort of situation we can expect if and when universities implement new policies based on the ED and DOJ "blueprint." Blake's remark was simply a humorous way of conveying a fact that was directly relevant to her lesson. But because one student was offended, she was threatened with punishment and had to drastically revise her course materials.
In explaining why this incident is troubling, Moshman points to the Academic Freedom Coalition of Nebraska's (AFCON's) Statement on Sexuality and Academic Freedom, which AFCON adopted in 2000. It defines harassment as "a pattern of actions specifically directed against a particular individual with the intent of humiliating, intimidating, or otherwise harming that individual," and states that "harassment is not protected by norms of academic freedom regardless of the sexual content of any ideas that may be expressed as part of the act of harassment."
Or, as Moshman insightfully comments:
Sexual harassment is wrong because it is harassment, not because it is sexual. We must define harassment strictly so we can oppose it consistently without infringing on the freedom to teach and talk about sexuality.
It seems that the Departments of Education and Justice have lost sight of why harassment is a problem to begin with. Now, instead of targeting harmful conduct, schools are being directed to investigate potentially any speech about sex, even when that speech contains important information for adult students.
May 24, 2013
Two weeks ago, FIRE President Greg Lukianoff was just finishing up a week-long guest blogging stint on The Louis D. Brandeis Center's blog when the Departments of Education and Justice issued their joint letter to the University of Montana, mandating speech codes on college campuses across the country. Returning to the Brandeis Center's blog this week, Greg tackles the letter, summarizing its legal deficiencies and the dangers it poses to student and faculty rights and pointing out three distinct contextual takeaways from the letter that are important for readers to understand.
Visit the Brandeis Center's blog to read Greg's latest piece and to find out what his three important takeaways from the ED/DOJ mandate are.
May 24, 2013
The University of Montana
The controversial University of Montana findings letter and resolution agreement (together, the “blueprint”) issued by the Departments of Justice and Education two weeks ago have drawn criticism from commentators nationwide. The heat has come from all corners, with UCLA School of Law professor and First Amendment expert Eugene Volokh, former Department of Education attorney Hans Bader, editorial boards, columnists, bloggers, civil libertarians, and many more weighing in on the threat to free speech on campus.
Given the hailstorm of criticism that has followed the feds’ high-profile roll-out for the University of Montana agreement, I’ve been struck by the lack of public support for the shockingly broad definition of “sexual harassment” that the Department of Education’s Office for Civil Rights (OCR) will now require of institutions receiving federal funding. Disappointingly, OCR has gone silent again, just as it did the last time it decided to severely erode student and faculty rights. I encourage folks reading at home to try your luck contacting OCR, because I’m pretty certain that they plan to simply ignore concerns about campus civil liberties until forced by popular demand to do otherwise.
So while we wait for answers from the authors of this “blueprint for colleges and universities throughout the country,” I want to address a question I’ve seen surface in a few comment sections online. A couple of folks have noted that the broad definition of sexual harassment put forth in the blueprint—that is, “any unwelcome conduct of a sexual nature”—closely tracks language contained in OCR’s 2001 Revised Sexual Harassment Guidance. In that document, OCR states that “[s]exual harassment is unwelcome conduct of a sexual nature.”
Given the nearly identical phrasing, I’ve seen a few commenters ask why we’re so concerned. How different is the blueprint released two weeks ago from the 2001 Guidance?
Short answer? Plenty.
For the long answer, let’s review the three central differences.
1. Unlike the 2001 Guidance, the “blueprint” requires the broad definition to be adopted verbatim as university policy.
In describing sexual harassment generally, the 2001 Guidance uses the same formulation found in the new blueprint—but it absolutely does not require colleges and universities to adopt that language, verbatim, as university policy.
In fact, the opposite is true. According to the 2001 Guidance, “Title IX does not require a school to adopt a policy specifically prohibiting sexual harassment or to provide separate grievance procedures for sexual harassment complaints.” Read that again: Not only does the 2001 Guidance not require schools to adopt the broad definition of sexual harassment as a statement of policy, it doesn’t require schools to adopt a sexual harassment policy at all. As long as the institution adopts and publishes “a policy against sex discrimination and grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex,” and as long as that policy and those procedures “provide effective means for preventing and responding to sexual harassment,” the school has fulfilled its obligations under Title IX.
And far from requiring universities to adopt the broad definition of sexual harassment verbatim, as the new blueprint does, the 2001 Guidance grants colleges and universities significant autonomy to draft their own procedures for fulfilling their Title IX obligations, based on their own particular institutional circumstances. The 2001 Guidance provides:
Procedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.
No one-size-fits-all mandate here!
In sharp contrast, the findings letter issued two weeks ago instructs the University of Montana to define sexual harassment in a very specific, very expansive way: “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” In so doing, the blueprint entirely erases the autonomy provided to institutions by the 2001 Guidance.
The findings letter explicitly rejects one of the University of Montana’s previous definitions—stating that sexual harassment is conduct “sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance”—as deficient. (It’s worth noting that FIRE rates this policy as a “green light,” as it presents no threat to protected expression as written. The policy does a fair job of tracking the core elements of the speech-protective definition of harassment in the educational context announced by the Supreme Court of the United States in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).)
The rejection of this University of Montana policy cannot be squared with the deference granted to institutions in the 2001 Guidance. And by proclaiming the University of Montana agreement to be a “blueprint for colleges and universities throughout the country,” OCR and the Department of Justice (DOJ) have fired a warning shot intended to be heard nationwide. To be in compliance with Title IX, the federal government is now on record as demanding that schools specifically adopt the broadest possible definition of sexual harassment as an operable statement of policy. That’s new.
2. Unlike the 2001 Guidance, the blueprint requires a new policy distinction between “hostile environment” harassment and “sexual harassment” more generally.
The second key difference between the 2001 Guidance and the blueprint is related to the first, but important enough to discuss separately.
In rejecting the University of Montana definition of sexual harassment provided above, OCR and DOJ charge that the university has impermissibly merged the definitions of what it characterizes as two separate offenses: “sexual harassment” and “hostile environment” harassment. Here’s the exact passage from page 8 of the findings letter:
The confusion about when and to whom to report sexual harassment is attributable in part to inconsistent and inadequate definitions of “sexual harassment” in the University’s policies. First, the University’s policies conflate the definitions of “sexual harassment” and “hostile environment.” Sexual harassment is unwelcome conduct of a sexual nature. When sexual harassment 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, it creates a hostile environment. The University’s Sexual Harassment Policy, however, defines “sexual harassment” as conduct that “is sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.” While this limited definition is consistent with a hostile educational environment created by sexual harassment, sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.” [Internal citation omitted.]
In other words, the blueprint requires universities to distinguish between “hostile environment” harassment and “sexual harassment” more generally—seemingly creating a broad third category of “sexual harassment,” distinct from hostile environment harassment and quid pro quo harassment. Accordingly, OCR and DOJ reject the University of Montana’s definition, claiming that it only reaches hostile environment harassment, and not sexual harassment writ large.
But this distinction between “sexual harassment” and “hostile environment” harassment is very different from the conception of sexual harassment discussed in OCR’s 2001 Guidance. In 2001, OCR stated:
This guidance moves away from specific labels for types of sexual harassment. In each case, the issue is whether the harassment rises to a level that it denies or limits a student’s ability to participate in or benefit from the school’s program based on sex. However, an understanding of the different types of sexual harassment can help schools determine whether or not harassment has occurred that triggers a school’s responsibilities under, or violates, Title IX or its regulations.
The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct. Whether the student resists and suffers the threatened harm or submits and avoids the threatened harm, the student has been treated differently, or the student’s ability to participate in or benefit from the school’s program has been denied or limited, on the basis of sex in violation of the Title IX regulations.
By contrast, sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct. Harassment of this type is generally referred to as hostile environment harassment. This type of harassing conduct requires a further assessment of whether or not the conduct is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the school's program based on sex.
Teachers and other employees can engage in either type of harassment. Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment. [Emphases added; internal citations omitted.]
Here, OCR makes no functional distinction between “sexual harassment” among students and “hostile environment” harassment at all. Indeed, OCR states that for students, sexual harassment is hostile environment harassment. So if the University of Montana’s policy impermissibly conflated hostile environment harassment and sexual harassment, as OCR and DOJ charge, then OCR’s 2001 Guidance is guilty of the same.
OCR’s distinction between “hostile environment” harassment and “sexual harassment” more generally is new, and so is requiring schools to make this distinction in their policies.
Why does this new distinction matter for freedom of expression?
Here’s why mandating this new distinction is important—and why it harms student and faculty rights. By separating “sexual harassment” from “hostile environment” harassment, OCR has also separated “sexual harassment” from the set of evaluative factors it uses to determine whether a hostile environment has been created. These factors include whether the conduct affected a student’s education, whether the conduct was part of a pattern of behavior, the identity of and relationship between the individuals involved, the context of the conduct, and more. By reviewing these and other factors to determine whether conduct created a hostile environment—and was thus sexual harassment—schools were able to separate truly harassing conduct from merely offensive or unwanted speech. Indeed, the 2001 Guidance instructed schools to “use these factors to evaluate conduct in order to draw commonsense distinctions between conduct that constitutes sexual harassment and conduct that does not rise to that level.”
Perhaps the most important of these evaluative factors is the requirement that allegedly harassing conduct must be evaluated from an objective, “reasonable person” standpoint. But under the blueprint, reference to this reasonable person standard may no longer be used to determine whether or not conduct is “sexual harassment.” As the blueprint states:
Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. This policy provides examples of unwelcome conduct of a sexual nature but then states that “[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was “unwelcome conduct of a sexual nature” and therefore constitutes “sexual harassment.” [Emphasis added.]
Put another way, because “hostile environment” harassment is now separate from “sexual harassment,” OCR no longer requires a showing of objective offense for conduct to be considered harassment. And because “conduct” includes “verbal conduct” (i.e., speech), even protected speech that wouldn’t offend a reasonable person may now be deemed “sexual harassment.” That’s new—and it’s certainly not common sense.
To demonstrate just how new—and dangerous—this result is, compare the blueprint’s removal of the objectivity requirement to the “Dear Colleague” letter issued by OCR in 2003 about the relationship between the First Amendment and federal anti-discrimination statutes like Title IX. In that letter, OCR made the importance of an objective evaluation very clear:
Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age. [Emphasis added.]
Removing the objectivity requirement and the other evaluative factors presents a serious threat to free expression on campus by rendering any speech of a sexual nature “sexual harassment” if a listener happens to be offended. As I explained in depth over at The Huffington Post, expanding the definition of sexual harassment this broadly means that real harassment will be trivialized, everyone on campus will be effectively branded a harasser, and students and faculty will rationally choose to keep their mouths shut rather than risk offending somebody. Those are all terrible outcomes for free speech on campus.
3. Unlike the 2001 Guidance, the blueprint entirely fails to consider civil liberties.
Finally, the new blueprint differs from the 2001 Guidance because it completely ignores free speech and due process rights. Not only did the 2001 Guidance grant significant deference to schools, and not only did it equate hostile environment harassment with sexual harassment and require conduct to be evaluated via a speech-protective set of factors, it also discussed civil liberties concerns at length, with two separate sections explicitly devoted to the First Amendment and the due process rights of the accused.
With regard to the First Amendment, the 2001 Guidance states plainly that:
Title IX is intended to protect students from sex discrimination, not to regulate the content of speech.... [I]n regulating the conduct of its students and its faculty to prevent or redress discrimination prohibited by Title IX (e.g., in responding to harassment that is sufficiently serious as to create a hostile environment), a school must formulate, interpret, and apply its rules so as to protect academic freedom and free speech rights.
That’s a very clear recognition of the importance of protecting campus expression, made even clearer by the 2003 Dear Colleague letter that followed, as my colleague Samantha Harris pointed out last week.
In sharp contrast—again—the words “free speech” and “First Amendment” simply do not appear anywhere in the blueprint’s 47 pages.
Sadly, the situation is much the same with regard to due process rights. The 2001 Guidance unequivocally acknowledges the necessity of due process protections:
The Constitution also guarantees due process to students in public and State-supported schools who are accused of certain types of infractions. The rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding. Furthermore, the Family Educational Rights and Privacy Act (FERPA) does not override federally protected due process rights of persons accused of sexual harassment. Procedures that ensure the Title IX rights of the complainant, while at the same time according due process to both parties involved, will lead to sound and supportable decisions.
The blueprint, on the other hand, does not. In fact, the blueprint even criticizes the University of Montana’s emphasis on due process rights:
The focus of the SCC [Student Conduct Code] process is on the perpetrator, his or her due process rights, and resolving possible violations of the SCC, and it does not adequately address the Title IX rights of the victim.
While the blueprint later acknowledges, in passing, that “students who are accused of [Student Conduct Code] violations are entitled to due process,” this brief aside is far removed from the 2001 Guidance’s clear recognition. In fact, the blueprint evinces such a contempt for due process rights that it actually goes so far as to suggest that in some cases, punishment may be required before the end of the investigation of allegedly harassing conduct:
In addition, a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser. [Emphasis added.]
Punishing a student before completing an investigation? It’s hard to imagine a more thorough rejection of due process rights than that.
So those are three major reasons that the blueprint represents a startling new approach for OCR—and a real threat to student and faculty rights. There are more. For example, the 2001 Guidance was issued after public notice and comment, in accordance with the Administrative Procedure Act, which requires agencies like OCR to solicit comments from those affected by proposed rulemaking before enactment. (Here’s a thorough discussion of the APA in the context of OCR’s 2011 “Dear Colleague” letter.) In contrast, the blueprint tacitly announces new requirements for institutions under Title IX, but was subject to no such review or comment.
We’ll have much more on the blueprint here soon. In the meantime, if you don’t support what OCR and DOJ’s new blueprint has done to student and faculty rights, remember to tell them directly.
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