Department of Justice: Title IX Requires Violating First Amendment

WASHINGTON, April 25, 2016—The Department of Justice now interprets Title IX to require colleges and universities to violate the First Amendment.

In an April 22 findings letter concluding its investigation into the University of New Mexico’s policies and practices regarding sex discrimination, the Department of Justice (DOJ) found the university improperly defined sexual harassment. DOJ flatly declared that “[u]nwelcome conduct of a sexual nature”—including “verbal conduct”—is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.”

To comply with Title IX, DOJ states that a college or university “carries the responsibility to investigate” all speech of a sexual nature that someone subjectively finds unwelcome, even if that speech is protected by the First Amendment or an institution’s promises of free speech.  

“The Department of Justice has put universities in an impossible position: violate the Constitution or risk losing federal funding,” said Foundation for Individual Rights in Education (FIRE) President & CEO Greg Lukianoff. “The federal government’s push for a national speech code is at odds with decades of legal precedent. University presidents must find the courage to stand up to this federal overreach.”

The shockingly broad conception of sexual harassment mandated by DOJ all but guarantees that colleges and universities nationwide will subject students and faculty to months-long investigations—or worse—for protected speech. In recent years, unjust “sexual harassment” investigations into protected student and faculty speech have generated national headlines and widespread concern. Examples include:

• Northwestern University Professor Laura Kipnis was investigated for months for writing a newspaper article questioning “sexual paranoia” on campus and how Title IX investigations are conducted.
• Syracuse University law student Len Audaer was investigated for harassment for comedic articles he posted on a satirical law school blog patterned after The Onion.
• A female student at the University of Oregon was investigated and charged with harassment and four other charges for jokingly yelling “I hit it first” out a window at a couple.
• The Sun Star, a student newspaper at the University of Alaska Fairbanks, was investigated for nearly a year for an April Fools’ Day issue of the newspaper and for reporting on hateful messages posted to an anonymous “UAF Confessions” Facebook page.
• And just two weeks ago, a police officer at the University of Delaware ordered students to censor a “free speech ball”—put up as part of a demonstration in favor of free speech—because it had the word “penis” and an accompanying drawing on it, claiming that it could violate the university’s sexual misconduct policy.

DOJ’s rationale would not just legitimize all of the above investigations—it would require campuses to either conduct such investigations routinely or face potential federal sanctions.

This latest findings letter doubles down on the unconstitutional and controversial “blueprint” definition of sexual harassment jointly issued by DOJ and the Department of Education’s Office for Civil Rights in a May 2013 findings letter to the University of Montana. FIRE and other civil liberties advocates at the time warned that the controversial language threatens the free speech and academic freedom rights of students and faculty members.

“Requiring colleges to investigate and record ‘unwelcome’ speech about sex or gender in an effort to end sexual harassment or assault on campus is no more constitutional than would be a government effort to investigate and record all ‘unpatriotic’ speech in order to root out treason,” said Robert Shibley, FIRE’s executive director. “Students, faculty, and administrators must not give in to this kind of campus totalitarianism—and FIRE is here to fight alongside them.”

In January, FIRE sponsored a lawsuit filed against Louisiana State University (LSU) that challenges the unconstitutional definition of sexual harassment being promulgated by the Departments of Education and Justice in this and in previous letters. Teresa Buchanan, a tenured associate professor of early childhood education in LSU’s acclaimed teacher certification program, was fired for “sexual harassment” under an LSU policy that tracks the federal government’s broad definition. Buchanan’s lawsuit challenges the policy’s constitutionality and its application to her.

FIRE is a nonpartisan, 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, freedom of expression, academic freedom, due process, and freedom of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:

Nico Perrino, Director of Communications, FIRE: 215-717-3473; media@thefire.org