Protected Speech: Nothing to Investigate

Last week, the Department of Education's Office for Civil Rights (OCR) issued a statement attempting to defend its controversial "blueprint" requiring colleges and universities to expand their definition of sexual harassment to include speech protected by the First Amendment. FIRE's response can be read here, but one aspect of OCR's response is worth closer examination.

One of the thrusts of OCR's statement was that its blueprint does not necessarily require universities to punish protected speech, only to investigate all reports of "sexual harassment" — including subjectively offensive speech protected by the First Amendment — to make sure that a hostile environment does not exist. After all, what's the harm in a little investigation if no one is censored or punished, right

Supporters of OCR's mandate have picked up on this distinction to accuse FIRE of making a mountain out of a molehill. For example, ThinkProgress intern Kumar Ramanathan wrote this week that OCR's new definition simply "encourages reporting of other kinds of conduct so that students will be more likely to over- rather than under-report and allow the University to determine what meets the legal definition of punishable harassment."

Individuals in a free society-let alone professors at the universities of a free society-are not investigated for their beliefs and protected expressions. Those beliefs and expressions are inviolable.

But OCR cannot lawfully require a university to investigate every subjectively offensive sexual or gender-based comment. If you just read that sentence and thought "why not?", consider this question: Should the House Committee on Un-American Activities have been able to investigate people suspected of Communist ties simply because those leanings, under some circumstances, might have led people to illegally advocate for the overthrow of the U.S. government?

The reality is that even if no one is officially punished, the threat of investigation has a pernicious chilling effect on protected speech. To understand this, just look at what OCR's resolution agreement requires of the University of Montana, under the heading "Tracking of Complaints of Sex-Based Harassment":

[T]he Title IX Coordinator will maintain records of all complaints, investigations, findings, the basis for those findings, and appeals, including, but not limited to: the complaint; the names of the complainant (if available), the accused, and witnesses; any statements or other evidence submitted or collected; interview notes; correspondence relating to the investigation; actions taken on behalf of the alleged victim(s) of sex discrimination; actions taken against the accused, including any temporary measures (e.g., temporary eviction from University housing); records of any discipline or proposed discipline; records of findings communicated to the parties; and records of any appeals. (Emphases added.)

If a student or faculty member knew that one subjectively offensive remark could trigger this kind of investigation — where, among other things, his or her name would be automatically added to a database as an "accused" person — might he or she think twice about speaking out on a controversial sex- or gender-related topic?

Years ago, FIRE handled the case of a professor at the University of Alaska (UA) who was investigated after several students objected to a poem she published about child sexual abuse in the Native Alaskan community. FIRE wrote to then-UA President Mark Hamilton:

Imagine that someone had objected to a professor's denial of the divinity of Jesus Christ or to a professor's lawful political affiliation. Imagine that an administrator replied that the complaint had been "forwarded upward...to the person in charge of resolving such matters, "assuring the person who complained about someone's Judaism, or socialism, or conservativism, that he or she would be informed" about what actions the College of Arts & Sciences will take." The forwarding is categorically chilling of freedom. The investigation, whatever its outcome, is categorically chilling of freedom. The intent to seek resolution, whatever its outcome, is categorically chilling of freedom. Individuals in a free society-let alone professors at the universities of a free society-are not investigated for their beliefs and protected expressions. Those beliefs and expressions are inviolable.

One has no right to investigate or administratively support the investigation of what is beyond investigation: the poetry and lawful expression of a member of the faculty. These are the products of rights beyond administrative power, because they are rights that adhere, inviolably, to the individuals of a free society and a free academic community.

To his great credit, Hamilton responded by issuing a memo to the Chancellors of all UA campuses, stating: What I want to make clear and unambiguous is that responses to complaints or demands for action regarding constitutionally guaranteed freedom of speech CANNOT BE QUALIFIED. Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message. Noting that, for example, "The University supports the right to free speech, but we intend to check into this matter," or "The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances," is unacceptable. There is nothing to "check into," nothing "to investigate."(Emphasis added.)

The next time you hear someone say "but OCR isn't telling schools to punish protected speech, just to investigate it," think back to Hamilton's words here. When the only conduct alleged is constitutionally protected expression, there is indeed "nothing to check into, nothing to investigate."