Feds’ new ‘anti-harassment’ mandate to universities: Violate the First Amendment

• The University of Michigan, the City University of New York, and Lafayette College all faced federal investigations in recent months for refusing to investigate protected political speech.
• The government’s new “cumulative” theory of harassment threatens campus speech and protest, as well as student and faculty speech online, in defiance of clear Supreme Court precedent.
• The chilling message is clear: To avoid federal anti-discrimination investigations, schools will have little choice but to violate the First Amendment.

PHILADELPHIA, June 27, 2024 — The Department of Education is required by law to guard against discrimination on the basis of race, color, or national origin in higher education. Now the agency is telling college and university administrators they can only achieve this important goal by violating the First Amendment.

That’s the chilling takeaway from agreements publicized this month between the Department of Education’s Office for Civil Rights and the University of Michigan, the City University of New York, and Lafayette College, which were under investigation for their post-October 7 responses to alleged anti-Semitism and Islamophobia. 

In some cases, when students complained about instances of political speech — such as a social media post using the phrase “from the river to the sea” or protesters shouting about “Nazi liberation” — the schools correctly determined the expression is First Amendment-protected speech. 

But to meet institutional obligations under Title VI of the Civil Rights Act of 1964, OCR now says campus administrators should have continued investigating. 

To keep their federal funding, colleges and universities now must investigate student or faculty expression to “assess whether incidents individually or cumulatively created a hostile environment for students, faculty, or staff” — even where the speakers don’t coordinate. 

“This unconstitutional mandate rewrites the rules of campus speech,” said Alex Morey, vice president of campus advocacy at the Foundation for Individual Rights and Expression. “OCR has invented a completely new standard that needlessly pits First Amendment rights against federal anti-discrimination law, dangling the threat of punishment over every discussion.” 

It’s been a quarter-century since the Supreme Court defined harassment in higher education in 1999’s Davis v. Monroe County Board of Education. That standard correctly holds that speech is not protected when it constitutes targeted, discriminatory conduct “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.” 

This strikes the right balance between two imperatives: protecting campus discourse on even the most controversial issues and guarding against discriminatory harassment. 

As OCR reminded schools in the years that followed Davis, discriminatory harassment must include “something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” OCR was also explicit that its “regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution,” and that there “is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.” 

But this month’s revelations mean these important limits, troublingly, no longer hold. While Davis properly drew the line between protected and unprotected speech in the context of harassment, OCR’s directives to UMich, CUNY, and Lafayette have scribbled all over it.

The new settlement agreements also represent the latest instance of whiplash for college administrators saddled with years of ping-ponging mandates on how to meet ever-changing government guidelines. 

Consider the conundrum now faced by the UMich, sued in 2018 for a bias-investigation protocol that violated students’ First Amendment rights. UMich agreed to change its policies to better protect expressive rights as a result of that litigation. The United States Court of Appeals for the Sixth Circuit found that UMich’s bias response team was likely to chill students’ speech because it had the ability to refer cases to administrators who could impose punishment. 

But now OCR is telling UMich it’s not investigating enough allegedly biased speech.

The new mandates set a deeply chilling precedent for students or faculty with dissenting, minority, or simply unpopular political views, on or off campus, who may now find themselves on the wrong side of not only a harassment allegation, but a mandatory government investigation — regardless of the allegation’s merits. And, of course, schools like UMich are freshly vulnerable to a new round of First Amendment lawsuits. Courts, not OCR, determine the limits of First Amendment rights.

Make no mistake: Without course-correction, students and faculty with controversial views will soon face formal investigations for expressing themselves. 

“The implication that these institutions violated Title VI because they didn’t do enough to respond to constitutionally protected expression is a field day for would-be censors,” said Tyler Coward, FIRE’s lead counsel for government affairs. “Because of these settlement agreements, universities nationwide will choose to censor first and ask questions later, silencing speech on hot-button topics instead of letting students and faculty discuss and debate without fear of discipline.”

Students have the right to learn on a harassment-free campus. They also have the right to express themselves consistent with the First Amendment. 

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Katie Kortepeter, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org