Federal Mandate Imposes Draconian National Collegiate Speech Code

Two weeks ago, I began my week of guest blogging for the Brandeis Center blog. Before my final blog post, however, I was stopped dead in my tracks by a letter issued jointly by the Departments of Education and Justice to the University of Montana. While the ED and DOJ were investigating the University of Montana for allegations of mishandling sexual assault cases, the joint letter took a disturbing turn and changed the definition of sexual harassment in a wildly broad way.

Last week, I summarized what was so concerning about this development in the Wall Street Journal, and I urge you to read that piece. To further summarize, however, the ED and DOJ took what used to be understood as a preliminary explanation of what harassment is—namely “unwelcome sexual conduct” which explicitly includes “verbal conduct,” also known as speech—and rechristened it as the controlling definition for harassment.

This is a major change.

Previously, sexual harassment had been understood as either quid pro quo harassment or hostile environment harassment. The federal government has now apparently created a third category through this new definition, which is so vague and broad that it will be laughed out of court if challenged.

And that is only the beginning of the problems with the ED/DOJ mandate. Another troubling aspect of the joint letter is that it guts the requirement that harassment be limited to speech/conduct which is found offensive to a “reasonable person.” This opens the door to all speech being limited to the tolerance of the most sensitive person on campus. The new letter has been criticized by First Amendment scholar Eugene Volokh, former OCR attorney Hans Bader, Atlantic columnist Wendy Kaminer, education blogger Joanne Jacobs, and many others.

Nevertheless, the standards of this new letter will be seen as binding by colleges across the country because the ED has power over the federal funding of universities and can launch much-feared and onerous investigations of universities. While the letter is technically only binding on the University of Montana, it signals how all future colleges will be judged, prompting colleges to ignore the ED’s directives at their peril.

Those of you who are unfamiliar with the history of abuses of harassment-based speech codes over the last several decades may be scratching your head as to why my organization, FIRE, and I are so concerned about what may seem like a change in a narrow area of law. I explained this in detail in my book Unlearning Liberty Campus Censorship and the End of American Debate, but there are a few points that are important to understand:

1. Overbroad and vague harassment rationales have been the primary justification and legal theory behind campus speech codes since the 1980s. Many remember that speech codes came into vogue on campuses in the 1980s and 1990s; what they tend to forget, though, is that a great deal of them were based on expansive definitions of harassment. Starting in 1989 with Doe v. University of Michigan and continuing through successful challenges at my alma mater, Stanford University, and most recently at the University of the Virgin Islands, there have been a series of defeats in court for harassment-based speech codes over the past 25 years. In fact, the abuse of harassment rationales by universities was so bad that in 2003 the ED issued a clarification letter to instruct colleges across the country that harassment, properly defined, requires a serious pattern of serious conduct, and that harassment-based speech codes could not be used to censor and punish speech protected by the First Amendment. Notably, there is no mention of “free speech,” the First Amendment, or the 2003 clarification letter in the recent May 9 DOJ/ED joint letter.

2. “Harassment” charges have been the weapon of choice against unpopular, dissenting, or in some cases comparatively innocuous speech on campuses for decades now.  While I provide maybe a dozen examples of the abuse of harassment allegations on college campuses in my book, it’s only a small fraction of the cases I’ve seen over the years. As I discussed in my Wall Street Journal op-ed, cases include one I previously mentioned at Tufts University in which a student publication was found guilty of racial harassment for publishing true, if unflattering, facts about radical Islam, and, more recently, a professor at University of Denver who was found guilty of harassment because of the necessarily taboo topics covered in his class about, well, taboos.

One stunning example that got cut from the Wall Street Journal piece at the last-minute occurred last fall, when a student at SUNY Oswego was accused of harassment and faced suspension because, as part of a class assignment, he emailed local hockey coaches and asked for their opinion of Oswego’s hockey coach. A rival coach—not even the one in question—found the survey “offensive” because the student told recipients that they didn’t need to feel obliged to say only nice things about the Oswego coach. The rival coach’s complaint was enough to get the student suspended and kicked off campus. Fortunately, FIRE intervened and in the face of public ridicule Oswego changed course.

Then, of course, there are the “classic” FIRE examples of the student who was found guilty of racial harassment for publicly reading a book, the student who was kicked out of the dorms for making a joke about the “freshman 15,” and a student disc jockey who was found guilty for cracking jokes about his own mother on his radio show. The list goes on and on.

 3. Harassment standards do not stay confined to sex. While I briefly make this point in my Wall Street Journal article, it bears repeating and emphasis: This is not just about failed attempts at flirting or unsuccessful requests for a date (though, by the plain language of the new standard, can include these as well). As you can see from the examples above, harassment is used to punish everything from sophomoric, if tame, jokes, to what books students read, to what actually gets taught in class—all on the basis of the broadest possible definition of sex and gender, which inevitably expands to race, ethnicity, and religion. This has been an ongoing problem on campuses for decades, and the ED and DOJ stepped in to make the situation far more confusing and campus administrators far more likely to overreact.

I could go on, but if you’re interested in this topic, I recommend you follow FIRE’s blog The Torch to keep up with the problems with the new ED/DOJ “blueprint.” Meanwhile, please consider contacting your alma mater to see if they intend to stand up to this new unconstitutional standard from the ED. In fact, you can even contact the ED directly through FIRE’s website.


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