Office for Civil Rights Fails to Acknowledge Free Speech Rights When Addressing 'Sexual Harassment' on Campus

As today's press release describes, FIRE has sent an open letter to the Department of Education's Office for Civil Rights (OCR) in response to OCR's guidance letter of April 4, 2011, sent to colleges and universities across the nation regarding their obligation to address sexual harassment and sexual assault on campus. OCR's policy guidance calls for a significant lowering of the due process protections afforded to students accused of these campus offenses. FIRE is very concerned about these calls for policy and procedural change, given the gravity of the offenses at issue and the dire consequences they can have for a student's academic career, personal life, and future employment prospects.

At the same time, the April 4 letter and its new federal regulations are a step backward for OCR in terms of its lack of recognition of the primacy of freedom of speech on the college campus. FIRE is deeply disappointed and concerned about this development as well. OCR's most recent letter, unlike previous OCR pronouncements, makes no reference to schools' obligations to uphold students' free speech rights when enacting and enforcing their sexual harassment policies, whether these obligations arise from the First Amendment in the case of public universities or from schools' own promises of free speech in the case of private institutions. Faced with this renewed pressure from OCR—a federal agency with considerable regulatory authority—to vigorously address and prevent instances of sexual harassment, it seems unfortunately likely that schools will run roughshod over students' free speech in order to escape a potential OCR investigation and the possibility of loss of federal funding.

OCR's new policy guidance, while calling for increased vigilance and new measures to address and prevent sexual harassment, fails to even mention the possibility that an overzealous enactment of policies carrying overbroad harassment rationales will conflict with freedom of expression. As we write in our open letter, this is a dramatic departure from previous OCR policy guidance on the matter, including the well-known "First Amendment: Dear Colleague" letter of July 28, 2003, as well as OCR's 2001 Revised Sexual Harassment Guidance.

The 2003 "Dear Colleague" letter, issued by then-Assistant Secretary Gerald A. Reynolds, is particularly instructive, as it clearly and thoroughly lays out OCR's presumptive position on the intersection of freedom of speech and harassment law:

I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution. OCR has consistently maintained that the statutes that it enforces are intended to protect students from invidious discrimination, not to regulate the content of speech....Thus, for example, in addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR. In order to establish a hostile environment, harassment must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student's ability to participate in or benefit from an educational program.

[...]

In summary, OCR interprets its regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles. No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights. There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.

OCR's April 4, 2011, letter, by contrast, not only fails to acknowledge the need to fully uphold freedom of speech when enacting and enforcing sexual harassment policies, but it does not even mention the free speech guidance contained in the 2003 "Dear Colleague" letter or the 2001 Guidance. Therefore, we write in our open letter:

As a result of this deficiency, FIRE worries that schools seeking to comply with OCR's increased emphasis on sexual harassment education and prevention will fail to promulgate and disseminate sexual harassment policies that provide sufficient protection for student speech. This result would contradict previous OCR guidance, longstanding legal precedent, and the normative conception of the primacy of freedom of expression in higher education. [Citation omitted.]

[...]

While concerns about free speech may seem unrelated to the thorough discussion of sexual violence emphasized in the April 4 letter, overly broad or vaguely constructed definitions of sexual harassment have served as a consistent justification for abuses of student free speech rights for more than two decades. FIRE's experience over the past dozen years shows that unless hostile environment harassment is properly defined, overly broad or vague regulations are all too often used to justify the punishment of protected speech.

Indeed, we have documented the misapplication of peer harassment law to censor, investigate, and punish protected student speech in countless places, from our Speech Code of the Month features highlighting untenable speech codes that often come in the form of repressive harassment policies, to our case work defending students' individual rights, to our legal scholarship. Indeed, a quick look through our Spotlight database for individual schools' speech codes reveals that unconstitutional harassment policies are the most frequent and often most egregious violations of students' speech rights.

OCR's April 4 letter is likely to cause universities to further misunderstand the free speech concerns implicated by the enactment and enforcement of policies intended to combat discriminatory harassment, creating a grave threat to free speech on campus.

We hope that the colleges and universities that received OCR's April 4 letter understand their legal obligations to fully uphold freedom of speech when striving to address and prevent sexual harassment on campus. It is not hard to achieve both goals; were OCR to mandate that colleges and universities implement no more and no less than the Supreme Court's speech-protective peer harassment as set forth in Davis v. Monroe County Board of Education (1999), as we described in a letter to President Obama upon his inauguration in 2009, OCR would provide clarity and certainty that would allow institutions to meet their obligations without significantly risking the possibility of First Amendment litigation.

FIRE will be working diligently to make sure that they do.