The Department of Education, Yale, And the New Threat to Free Speech on Campus

Yale University's decision last month to punish a fraternity that made pledges chant offensive slogans was heralded by some as a blow against sexual harassment in the college setting. But it may be the beginning of a new wave of campus censorship of politically incorrect speech. The reason lies in the relationship between the Department of Education's Office for Civil Rights (OCR), which is in charge of enforcing federal antidiscrimination laws on campus, and the ever-growing ranks of campus bureaucracy.

On April 4, 2011, OCR issued a 19-page letter laying out detailed procedures every university in the country must follow in cases involving claims of sexual harassment or sexual assault. A college that fails to follow these guidelines risks an OCR investigation and the loss of federal funding, a devastating blow for many schools. In the case of Yale, for example, OCR has the power to withhold half a billion dollars in federal funds.

The new regulations were handed down in an effort by OCR to address campus sexual assault. (For years now, sexual assault has been understood as an especially egregious form of sexual harassment, allowing OCR to police how universities respond to it under the agency's power to enforce Title IX.) A major component of the April 4 "guidance" letter is the requirement that universities adopt a "preponderance of the evidence" (roughly a 50.01% or "more likely than not") standard of proof for deciding sexual harassment and sexual assault claims.

This mandate effectively overruled many colleges that use a standard of evidence more protective of the accused. While the question of whether universities should be in the business of adjudicating felonies at all is a crucial question in itself, several commentators have rightly pointed out that -- especially in light of the rush to judgment in the Duke University lacrosse case -- lowering due process is no way to increase campus justice.

What has not been sufficiently examined, however, is the potential disaster for freedom of speech that the April 4 letter presents.

Why should a campaign against sexual violence have any ramifications for freedom of speech? Simple. While OCR's April 4 letter is aggressive and specific in requiring universities to police harassment, it took little to no notice of the fact that most university harassment policies, and many university sexual misconduct (a euphemism for various kinds of sexual assault, including rape) policies, are dangerously broad.

Indeed, since the 1980s, harassment policies have been the main vehicle for campus speech codes -- that is, collegiate policies that restrict speech protected by the First Amendment. These policies don't just sweep in a little protected speech; in some cases, they go so far as to make virtually every student on campus guilty of harassment.

Here are just a few examples of how harassment is defined on campus: California State University-Monterey Bay policies state that sexual harassment "may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations." UC Berkeley lists "humor and jokes about sex in general that make someone feel uncomfortable" as harassment. Alabama State University lists "behavior that causes discomfort, embarrassment or emotional distress" in its harassment codes. Iowa State University states that harassment "can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault."

At some point or another, we have all made someone else feel uncomfortable, whether intentionally or not. We have caused someone else emotional distress. And yes, all of us have likely flirted with someone who isn't interested and may have even made an innuendo. The thinking behind these absurdly broad codes seems to be if you make every student guilty, you can let campus administrators decide who to punish. In the "risk management" industry, which provides legal consulting to universities, this guilty-until-proven-innocent mentality is cutely referred to as "wiggle room."

There is a pernicious feedback loop between OCR, the risk management industry, and campus judicial systems. In the 1980s, universities and legal scholars were at the vanguard of the speech codes movement, which argued that in an effort to combat racist, sexist, and other offensive speech, the definition of harassment needed to be broadened to include anything that might offend.

The policies constructed by this movement were struck down by courts as being so vague and broad as to prohibit huge swaths of speech protected by the First Amendment. That trend has continued -- since 1989, a dozen universities have lost legal battles over these codes. Many believe that speech codes went the way of the dodo because of these courtroom defeats. If only that were true.

In part because universities could claim that they were required to pass speech codes under OCR requirements to investigate claims of hostile environment harassment, speech codes based on the harassment model flourished. My organization, the Foundation for Individual Rights in Education (FIRE, a nonpartisan nonprofit defending free speech on college campuses), found in the most extensive study yet conducted that 67% of 390 top colleges surveyed in 2010 still maintain policies that are laughably unconstitutional under First Amendment standards. Despite courtroom lessons, a dangerous synergy exists between campus ideologues who believe that free speech is incompatible with a just society, and campus lawyers who want to insulate their universities from OCR liability and harassment lawsuits.

Indeed, the problem spiraled out of control so badly that in 2003 (under different leadership), OCR made it clear that its attempts to stamp out real harassment could not be used as an excuse for universities to pass speech codes that punish merely offensive speech. OCR explained, in another guidance letter to universities nationwide, that the First Amendment categorically made it impossible for the agency to require universities, whether public or private, to pass codes that punish protected speech. Its 2003 letter did an excellent job of taking away from universities the ability to invoke "the government made me do it" argument when they passed their speech codes. This did not stop universities from passing speech codes, but the 2003 letter may have been in part responsible for the slight decrease in campus speech codes in the past several years.

It is therefore remarkable that the April 4 OCR letter makes no mention of this crucial 2003 guidance. By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities' due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation's colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it. Instead, it's created a perfect storm for rights violations.

OCR could have easily solved the problem by adopting the standard for university liability in peer-on-peer harassment cases enunciated by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). The Davis standard defines peer-on-peer harassment as unwelcome discriminatory behavior, directed at a person because of his or her gender, 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." The Davis standard expertly balances legitimate concerns about actual discrimination and harassment while protecting free speech and not overburdening universities with unrealistic obligations to police every aspect of their students' lives.

Wildly vague and broad harassment codes would be a serious concern even if they were never enforced. They are misinforming a generation about their rights and the rights of others. Given that the codes appear in student handbooks across the country, students have started believing that while the First Amendment may protect some speech, anyone who is guilty of "elevator eyes" -- a behavior listed as a form of sexual harassment in the code at Murray State University in Kentucky -- is not protected. Indeed, by propagating, maintaining, and publishing these codes, universities are sending the message that speech is only free as long as it offends no one. No wonder college students have a reputation for being reticent about expressing their opinions: If you believe you could get in trouble for offending someone, why would you bother opening your mouth at all?

Such illiberal lessons would be bad enough, but these codes are also enforced in cases so wild they are hard to believe. A student at a public college in Florida was charged for setting up a Facebook page that referred to a campus presidential candidate as a "jerk and a fool"; a student at a public college in Indiana was found guilty of harassment because a book he was reading about the defeat of the Ku Klux Klan featured a picture of Klansmen on the cover; a student in New Hampshire was found guilty of harassment for making a flyer that joked about the "freshman 15"; a student shock jock in California was found guilty of harassment for making fun of members of student government and cracking jokes about his own mother; and a 55-year-old grandmother was targeted after accidentally hitting "reply all" in a message in which she referred to a professor using a rude word. The list goes on and on.

If you have any doubt that this new OCR initiative will affect speech, look no further than Yale. Last month, individual members of Yale's Delta Kappa Epsilon (DKE) fraternity were punished and the entire fraternity was suspended for five years because brothers made pledges walk blindfolded around campus chanting "No means yes, yes means anal" and "My name is Jack, I'm a necrophiliac, I fuck dead women." Yes, this speech is about as far from sympathetic as anything this side of Fred Phelps, but in this case it seems clear that the frat's goal was to embarrass their pledges and to shock the campus community. Well, they overshot their goals.

Those blinded by the offensiveness of what the frat boys said fail to understand the ramifications of their punishment for every college in the country. In the wake of the incident, Yale came out and publicly condemned the speech, the frat boys involved profusely apologized, and the DKE national office suspended the frat's pledge activities. So, the case should have been closed. Nevertheless, responding to complaints from students at Yale, OCR launched an investigation against Yale in March to investigate this and other incidents -- ranging from lewd comments to allegations of assault. As anyone who's ever attended a conference of the Association for Student Conduct Administrators -- an umbrella group of university administrators involved in campus justice -- already knows, campuses are terrified of such OCR investigations as they are notoriously heavy-handed, onerous, and damaging to a university's reputation. They are, of course, even more frightened that OCR wields the power to shut off federal funding. So Yale is now scrambling to appease the OCR investigators, starting with its punishment of DKE.

This is the problem that universities across the country now face. Frat boys and others say offensive things in part because people tell them not to. The desire to "get a rise" out of someone extends far beyond campuses into cable television, stand-up comedy, and practically every successful comedy movie of the last 15 years. People are not going to stop making tasteless jokes or offensive comments. But if universities know they can face a federal investigation and the loss of funding if anyone who says something offensive on campus is not punished, they have every incentive to overreact to offensive or controversial speech. Campus risk managers will police offensive speech with a better-safe-than-sorry mentality and campus ideologues who believe that no one should say anything politically incorrect will have carte blanche to punish and chill speech they dislike or disagree with.

This may seem like a bleak outlook on how human beings respond to opportunities to silence voices they dislike, but my career has taught me that people are endlessly creative in finding justification to censor. That is why the Framers put the power to regulate opinion outside of the powers of government; they saw by example how quickly and almost inevitably such power gets abused. Now that universities have to fear losing all of their federal funding every time a frat boy offends, they have every reason to panic, and their rational overreactions to this threat endangers campus free speech and dissent.

But it is not too late for OCR to prevent this anti-speech panic. By making it clear that "harassment" means no more and no less than the Davis standard, OCR can eliminate the main excuse for campus speech codes.