My Statement Regarding the Abuse of Harassment Codes on Campus

 

Today I addressed the United States Commission on Civil Rights to talk about the role that federal law and regulations have played in encouraging campus speech codes. Here is my testimony:

If you had told me before I started working at the Foundation for Individual Rights in Education, the leading defender of free speech rights on college campuses, that I would routinely battle the startling misapplications of harassment codes to punish speech that is clearly protected by the First Amendment, I probably wouldn’t have believed you.

But when I began work at FIRE in 2001, I quickly discovered that not only were harassment codes routinely abused, but that leaders of the campus speech codes movement of the 1980s and ’90s explicitly argued that harassment codes should be used to punish speech they deemed offensive. I discovered that every single speech code that was overturned between 1989 and 1995 involved some attempt to twist a harassment code into a vague and broad tool against disfavored speech.

The proponents of harassment-based speech codes have quietly achieved tremendous success, despite the fact that courts have consistently recognized that merely labeling a speech code a “harassment policy” does not magically inoculate it from First Amendment scrutiny. Since 1989, at least 37 lawsuits have been filed challenging speech codes, over half of which involved overbroad harassment codes. Despite loss after loss in court, 58% of public colleges bound by the First Amendment maintain unconstitutional speech codes today. A substantial portion of these are harassment-based codes.

FIRE has seen harassment-based speech codes abused to punish obviously protected speech at dozens of universities around the country, including Tufts University, University of Colorado-Boulder, University of Denver, Appalachian State University, and more. Indeed, I wrote a book that deals extensively with the abuse of harassment codes, Unlearning Liberty.

Universities have long tried to claim that “the federal government made me do it” by citing Title IX and the requirements of the Office for Civil Rights of the Department of Education. This blame game became so ridiculous that in 2003, OCR issued a “Dear Colleague” letter to every university in the country spelling out that the federal government was not mandating — indeed, could not mandate — the adoption of campus harassment codes that violate First Amendment norms. After 2003, universities could no longer argue that they were being forced by the executive branch to maintain speech codes.

But in 2013, in response to the University of Montana’s mishandling of sexual assault cases, the Department of Justice and OCR issued a resolution agreement they deemed a“blueprint” for every college in the country. Shockingly, the blueprint’s definition of sexual harassment was even broader than the speech codes repeatedly struck down in federal court over the past 25 years.

For context, in 1999 the Supreme Court decided Davis v. Monroe County Board of Education, involving student-on-student harassment in the K-12 setting. The Court was very aware that the standard for harassment must be clear and rigorous in order to prevent creating an all-purpose tool to punish disagreeable speech.

The Court ruled that for an institution to be liable under Title IX for inadequately responding to harassment, the plaintiff must prove that the institution was “deliberately indifferent” to claims of sexual harassment, and that the targeted conduct was “so severe, pervasive, and objectively offensive” that the victim was “effectively denied equal access to an institution’s resources and opportunities.”

The Davis standard is rigorous precisely because the Supreme Court knew they had to protect First Amendment rights.

In the “blueprint,” however, OCR ignored these crucial limitations, explicitly overruling Montana’s “reasonable person” standard. Under the blueprint, universities must investigate harassment claims even when a reasonable person would not have found the speech objectionable, thereby weaponizing the sensitivities of the least speech-tolerant students of campus.

In sharp contrast to Davis, the blueprint definition of harassment was simply “unwelcome verbal conduct [a.k.a. speech] of a sexual nature.” Such a vague, broad standard would never hold up in court, yet OCR sought to impose it nationwide. Understand that all harassment regulations and guidance coming from OCR are applied by universities to a litany of categories including race, ethnicity, religion, and even “political viewpoint.” So as a practical matter, the blueprint would be understood by risk-averse general counsels as notice that the federal government was now defining harassment as “any speech that offends, even if a reasonable person would not have been offended.”

In the face of public outrage, OCR eventually gave some indication that it is backing away from this unconstitutional standard. Assistant Secretary for Civil Rights Catherine Lhamon wrote FIRE reaffirming OCR’s commitment to the First Amendment and characterizing the blueprint as “the resolution of that particular case and not OCR or DOJ policy.”

Unfortunately, Department of Justice officials continue to publicly praise the Montana agreement as a model for other universities to follow. Universities are effectively being told: “Pass this unconstitutional speech code or risk losing federal funding.” Universities are not willing to risk running afoul of OCR, and so many of them are passing unconstitutional codes that adopt the blueprint’s harassment standard.

Troublingly, the legislative branch has followed suit. Senator McCaskill has recently suggested legislation to counter the Davis standard. And Congress is considering the Tyler Clementi Higher Education Anti-Harassment Act, which in its present form, threatens the First Amendment by failing to track Davis.

Harassment codes have been abused for too long, chilling campus speech and trivializing real harassment. The Supreme Court has supplied a careful, speech-protective standard. Congress can settle this debate easily by clarifying that the Davis standard is the definition of peer harassment under federal anti-discrimination standards. By taking this step, Congress could end a decades-long attempt by some administrators and, sadly, a federal agency to turn harassment into an all-purpose campus speech code.

We hope that the United States Commission on Civil Rights will help add clarity to the law and protect free speech on campus.

Thank you.

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  1. Tuck Inactive
    Tuck
    @Tuck

    The rot runs deep and is widespread.

    When I was at University of Rochester in the late ’80s, I pointed out to one of the school administrators that the speech codes they wanted to create were a violation of the First Amendment.  “Oh, we can get around that”, she replied.

    I guess she was right.

    I left the university shortly after that.  I realized I was wasting my money: no education in anything other than what Animal Farm looked like up close would be forthcoming.

    • #1
  2. user_8182 Coolidge
    user_8182
    @UndergroundConservative

    Keep up the great work. Thank you so much.

    • #2
  3. Idahoklahoman Member
    Idahoklahoman
    @Idahoklahoman

    Good article, Greg. University general counsel are right to be risk-averse — that is their job. But a far greater risk than an OCR enforcement action is the risk of a lawsuit from a student or faculty member claiming denial of due process or infringement of first amendment rights. The OCR has never actually cut off a school’s funds. Plaintiffs have been awarded damages, however. There will, sooner or later, be a court decision striking down harassment codes and much of the Title IX guidance from the OCR. I just hope it happens before my school gets embroiled in a case of its own.

    • #3
  4. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    How can anything be “objectively” offensive?

    • #4
  5. MarciN Member
    MarciN
    @MarciN

    American publishers, as an industry, have been staunch defenders against censorship of any kind anywhere.  I would think they would be FIRE’s best friends.  

    What an oppressive atmosphere these regulations must have created by now.

    The universities’ efforts to squash “intimidating” speech are odd given that American high schools give kids the absolute worst trash to read and don’t worry at all about the effect it might be having on the kids.  And it’s okay–indeed, it is fun and encouraged–to bash white guys, Jews, and Christians.

    • #5
  6. Nanda Panjandrum Member
    Nanda Panjandrum
    @

    Well done, Greg…Thanks for hanging in there and taking the fight to them.

    • #6
  7. user_11047 Inactive
    user_11047
    @barbaralydick

    MarciN: The universities’ efforts to squash “intimidating” speech are odd given that American high schools give kids the absolute worst trash to read and don’t worry at all about the effect it might be having on the kids. And it’s okay–indeed, it is fun and encouraged–to bash white guys, Jews, and Christians.

     Very interesting point.  And you’re right about bashing certain groups.  That’s allowed under the PC ‘charter.’  It seems to get worse at the university level.  The PC crowd is intent on  pushing their view of life down the throats of university students – and the OCR is right behind them, helping.  Unfortunately, university counsel has to protect the school.  This adds up to might. But FIRE has right on their side and God willing, will prevail.

    • #7
  8. MarciN Member
    MarciN
    @MarciN

    barbara lydick:

    MarciN: The universities’ efforts to squash “intimidating” speech are odd given that American high schools give kids the absolute worst trash to read and don’t worry at all about the effect it might be having on the kids. And it’s okay–indeed, it is fun and encouraged–to bash white guys, Jews, and Christians.

    Very interesting point. And you’re right about bashing certain groups. That’s allowed under the PC ‘charter.’ It seems to get worse at the university level. The PC crowd is intent on pushing their view of life down the throats of university students – and the OCR is right behind them, helping. Unfortunately, university counsel has to protect the school. This adds up to might. But FIRE has right on their side and God willing, will prevail.

     Agreed.  FIRE is an amazing group, fighting an uphill battle against a formidable force.  How universities went from seeking truth whatever it may be, unconstrained by special interests or outside forces, to being the closed-minded institutions is beyond me.  How does western civilization go backward?  It’s not ignorance.  These people know a lot of stuff.  

    • #8
  9. MJBubba Inactive
    MJBubba
    @MJBubba

    “It’s not ignorance. These people know a lot of stuff.”

    The culture war we fight is religious at the core.   The universities are dominated by highly intelligent overeducated people who have been beguiled by the Enemy.   They worship the gods of their own intellects.

    • #9
  10. MarciN Member
    MarciN
    @MarciN

    MJBubba:

    “It’s not ignorance. These people know a lot of stuff.”

    The culture war we fight is religious at the core. The universities are dominated by highly intelligent overeducated people who have been beguiled by the Enemy. They worship the gods of their own intellects.

     Truth for a Sunday morning.  Yep.  Geesh.  

    • #10
  11. ctlaw Coolidge
    ctlaw
    @ctlaw

    Greg, I have a question about some of the selective enforcement.

    The leftist administrations will deliberately mischaracterize activities by their opponents. For example, if a conservative student posts a cartoon of Obama mispronouncing “corpsman” the administration may come up with all sorts of BS calling it constructive racist violence and intimidation… Of course the same administration will take no action against actual violence against the conservative.

    At what point does the administration’s mischaracterizing of the conservative student’s activity rise to the level of actionable defamation? This may be more relevant when dealing with private institutions. The private school may have a right to discriminate that a public school does not, but it does not have any right to lie about it in a defamatory way. There also will be no sovereign immunity issues.

    • #11
  12. Greg Lukianoff Contributor
    Greg Lukianoff
    @GregLukianoff

    Idahoklahoman:

    Good article, Greg. University general counsel are right to be risk-averse — that is their job. But a far greater risk than an OCR enforcement action is the risk of a lawsuit from a student or faculty member claiming denial of due process or infringement of first amendment rights. The OCR has never actually cut off a school’s funds. Plaintiffs have been awarded damages, however. There will, sooner or later, be a court decision striking down harassment codes and much of the Title IX guidance from the OCR. I just hope it happens before my school gets embroiled in a case of its own.

    Thanks for your comment. What is interesting is there has already been nearly two dozen decisions overturning campus harassment codes, but those lawsuits are not common enough to make universities change their behavior.  That is why we really stepped up the number of suits we do as of July 1. But, to a large degree, OCRs real power is to launch a costly, embarrassing and time-consuming investigation, not just the threat of withdrawal of funds. 

    • #12
  13. Greg Lukianoff Contributor
    Greg Lukianoff
    @GregLukianoff

    MarciN:

    American publishers, as an industry, have been staunch defenders against censorship of any kind anywhere. I would think they would be FIRE’s best friends.

    What an oppressive atmosphere these regulations must have created by now.

    The universities’ efforts to squash “intimidating” speech are odd given that American high schools give kids the absolute worst trash to read and don’t worry at all about the effect it might be having on the kids. And it’s okay–indeed, it is fun and encouraged–to bash white guys, Jews, and Christians.

     Great point. In fact FIRE has a warm relationship with the group American Booksellers for Free Expression. They are great on free speech issues, just our cases do not often overlap.

    • #13
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