DOJ Findings Letter to UNM Exacerbates an Already Significant Problem with University Speech Codes

As has been covered extensively on The Torch by my colleagues, the Department of Justice (DOJ) significantly harmed free speech on college campuses recently with its findings letter to the University of New Mexico (UNM) concluding an investigation into the university’s policies and practices regarding sex discrimination.

Unfortunately, DOJ’s letter doesn’t just create a new problem, nor is its impact limited to UNM’s campus. Rather, the letter adds to the already prevalent problem of colleges and universities throughout the country, under federal guidance, adopting overbroad definitions of sexual harassment in their policies and jeopardizing student and faculty free speech rights in the process.

In finding fault with UNM’s policies and practices regarding sex discrimination on campus, DOJ’s letter states that the university must do more than simply address sexual harassment that falls under the categories of hostile environment and quid pro quo. The department flatly declares that “[u]nwelcome conduct of a sexual nature,” including “verbal conduct” (i.e., speech), is sexual harassment “regardless of whether it causes a hostile environment or is quid pro quo.”

FIRE’s initial reaction to the findings letter wasn’t much different from our reaction to the settlement agreement reached by DOJ and the Department of Education’s Office for Civil Rights (OCR) in 2013 with respect to the University of Montana’s (UM’s) policies and practices on this same issue. In what they called a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” DOJ and OCR concluded their investigation of UM by mandating the same standard now set forth in DOJ’s findings letter to UNM. As we warned back in 2013, this overbroad and vague definition threatens a great deal of constitutionally protected speech, ranging from discussion of sex-themed literature in an English class to jokes of a sexual nature to even debate over sex- or gender-based political topics on campus.

After all, if any speech related to sex or gender that another person subjectively finds to be “unwelcome” is considered sexual harassment, no matter how unreasonable that assertion may be, then student and faculty speech rights have taken a sharp blow.

Our fears with the 2013 “blueprint” have only been confirmed since then, as universities around the country have adopted the same (or very similar) standards for sexual harassment in their own policies. Just this month, FIRE named Clemson University our “Speech Code of the Month” recipient because its “Anti-Harassment and Non-Discrimination Policy” defines sexual harassment as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” That sure sounds familiar. Likewise, we have found such blueprint-based speech codes as the following:

• The University of Colorado at Boulder defines sexual harassment as “unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal or physical conduct of a sexual nature.”

• Georgia Southern University states that sexual harassment “is defined as unwelcome conduct of a sexual nature,” and that “[s]uch conduct may include sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.”

• The University of Missouri simply states that “[s]exual harassment is a form of sex discrimination. It consists of unwelcome verbal or physical conduct of a sexual nature.”

Given that these and other institutions are following the federal blueprint to the detriment of the speech rights of their students and faculty, there is now reason for further concern in light of the DOJ findings letter.

Our concerns are not limited to the strict language of universities’ policies. As cases like that of Professor Laura Kipnis at Northwestern University demonstrate, universities have taken the federal mandate to mean that they must crack down on all manner of protected speech in the name of Title IX and eradicating sex discrimination. Indeed, the FIRE-sponsored lawsuit filed recently by Professor Teresa Buchanan against Louisiana State University involves not only the same kind of OCR- and DOJ-driven punishment of protected campus expression, but also a challenge to a blueprint-based sexual harassment policy.

Back in 2013, I wrote an article for The Huffington Post in response to the DOJ and OCR blueprint settlement, titled “How Colleges Label Protected Speech as ‘Harassment’—And Why the DOJ and ED Have Made Matters Worse.” The same concerns I raised in that piece have now been brought back to the forefront with DOJ’s findings letter to UNM. Let’s hope we don’t see the same increase in the prevalence of unconstitutional speech codes as a result of the letter.