Speech Codes and "Twisting Title IX"

This article appeared in The Volokh Conspiracy.

One of the many surprises of working to defend freedom of speech on college campuses over the last 18 years is how frequently harassment rationales have been used to justify clearly unconstitutional campus speech codes — and how little this is known outside of relatively small circles. For example, it's not uncommon for Greg talk to lawyers who are familiar with the rise of "politically correct speech codes of the late 1980s and early '90s," but who are seemingly unaware virtually all of those codes were presented as anti-harassment codes.

Even Doe v. Univ. of Michigan, the first speech code challenge in the era of "politically correct" codes (very roughly, 1985-1995), involved a code with the lofty title of "The University of Michigan Policy on Discrimination and Discriminatory Harassment." The policy prohibited a great deal of protected speech, including "demeaning" speech. In a list of theoretical examples, it said a student group would violate the policy by inviting a hypothetical comedian who tells race-based jokes. In practice, the policy was frequently invoked against students of color, rather than to improve their environment. (That is a recurring theme of speech regulations in general. Granting authority figures the ability to regulate speech rarely accrues to the benefit of the marginalized.)

Some universities tried to combine the anti-harassment rationale and the fighting words doctrine. Among them was Greg's alma mater, Stanford Law School, whose speech code was defeated in court just two years before he started there. (Somehow, he had heard nothing about that lawsuit until after he had graduated.) Judges, however, were not fooled by the sleight-of-hand. Even Judge Avern Cohen, who was highly sympathetic to the speech code before him in Doe v. U. of Michigan, had to conclude that the attempt was incompatible with the First Amendment:

While the Court is sympathetic to the University's obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech. Unfortunately, this was precisely what the University did.

Despite early and consistent losses in court like these, the perceived need to impose anti-harassment rules has been the go-to rationale for many cases in which campus administrators, despite being bound by the First Amendment, try to punish professors or students for clearly protected speech. A few examples:

• In 2004, the University of New Hampshire evicted a student from his dorm for "acts of dishonesty," violation of "affirmative action" policies, "harassment," and "lewd" and "disorderly" conduct. Frustrated with the slow elevators, he had posted flyers suggesting girls walk off the "Freshman 15" by taking the stairs.
• In 2006, the University of Central Florida charged a student with "harassment" and "personal abuse." He had made a facebook group where he called a student running for student government a "jerk and a fool."
• In 2010, Syracuse accused a law student of "harassment" for running a satirical mock news blog about campus life, written in the style of The Onion.
• In 2012, Appalachian State University placed a tenured professor on leave for "harassment" and "creating a hostile environment." She had criticized the university and student-athletes accused of sexual assault, and also showed part of a documentary critical of the pornography industry.
• In 2017, Howard University found a law professor responsible for "sexual harassment" after a 504-day investigation because he had used a hypothetical on an exam that included someone sleeping through a bikini wax.

This pattern shows up again and again. In a May 2015 Chronicle of Higher Education essay, Northwestern University professor Laura Kipnis criticized what she saw as "sexual paranoia" on her campus and the university's handling of a Title IX lawsuit; after her article was published, Kipnis was subjected to a Title IX investigation for, among other things, creating a "hostile environment" and a "chilling effect" on new reports.

When Kipnis wrote a book critical of that process, she was subjected to another Title IX investigation. From beginning to end, the process took over two years. (A defamation suit filed against Kipnis by a student continues.)

In 2015, Louisiana State University fired professor Teresa Buchanan (despite a contrary recommendation of a faculty panel) for "sexual harassment." Buchanan's offense was to occasionally use profanity and sexual language in front of her adult students. She sued; a district court ruled in favor of the school at summary judgment, and she is appealing that decision. (FIRE is sponsoring Buchanan's case as part of our Stand Up For Speech Litigation Project.)

This last example highlights the strange interaction between the Department of Education, advocates of restrictive speech codes, and federal law. Louisiana State University fired Buchanan under an astonishingly broad definition of harassment: "unwelcome verbal, visual, or physical behavior of a sexual nature." But its use was no accident; the definition tracks the one proposed by the Department of Education and Department of Justice in a supposed May 2013 "blueprint" for anti-harassment codes included in a settlement letter with the University of Montana.

Very little about the 2013 "blueprint" makes sense, starting with whether it's a "blueprint" or not. The letter describes itself as "a blueprint for colleges and universities throughout the country." FIRE strongly opposed the "blueprint" as soon as it went public, both for substantive reasons (which we'll discuss shortly) and because announcing a dramatic regulatory change in a letter to a specific college seemed like an attempt to circumvent the "notice and comment" period that such rules would normally require. (The purpose of notice-and-comment, after all, is to avoid making bad policies — like this one.)

In November of 2013, FIRE received a letter from the Department of Education's Office for Civil Rights (OCR) dismissing FIRE's concerns because, supposedly, the "blueprint" was "not OCR or DOJ policy." Yet in 2016, the DOJ sent a letter to the University of New Mexico finding that the school's sexual harassment policy was insufficient because it didn't use a broad enough definition of harassment — and it proposed, without directly referencing it, the standard articulated in the 2013 "blueprint."

So, to sum up the government's argument: The law mandates that colleges comply with Title IX. The 2013 letter is a blueprint on compliance; but it's not the official policy that colleges use it; but colleges that don't use it might be found non-compliant.

And yet this is only the second biggest problem with the letter.

The biggest problem is that the blueprint definition doesn't track the Supreme Court's standard for harassment in this context — that the conduct be "so severe, pervasive, and objectively offensive… that the victim-students are effectively denied equal access to an institution's resources and opportunities." Without the requirement that the conduct be objectively offensive, anything can be a form of harassment, if you happen to find an unreasonable enough student.

The most frustrating part for those of us at FIRE was that it reversed a decade of clear guidance that anti-harassment codes could not be an end-run around the First Amendment. After cases like the ones involving speech codes at Michigan and Stanford, in 2003, the Department of Education sent guidance to every campus it administers directing them that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." While that stopped short of imposing the constitutional standard, it at least prevented schools from using OCR's interpretation of Title IX as a justification for violating the First Amendment. The 2013 "blueprint" retreated from that commitment to the First Amendment without admitting it was a major policy change.

Fortunately, this is one problem that may soon be resolved. Last month, the New York Times reported that it obtained a leaked draft of the new Title IX regulations the Department of Education apparently plans to offer soon for notice and comment. According to that report, the proposed rules will directly include the requirement that harassment be severe, pervasive, and objectively offensive. As our colleague at FIRE Robert Shibley observed, such a change "may well be the single greatest blow to campus speech codes in FIRE's 20 year history."