January 2014
November 21, 2013
WASHINGTON, November 21, 2013—The federal government is backing away from the
nationwide “blueprint” for campus speech restrictions issued this May by the
Departments of Education and Justice. The agencies’ settlement with the
University of Montana sought to impose new,
unconstitutional speech restrictions, due process abuses, and an overbroad
definition of sexual harassment and proclaimed the agreement to be “a
blueprint for colleges and universities throughout the country.”
But
in a letter sent last week
to the Foundation for Individual Rights in Education (FIRE), the new head of the
Department of Education’s Office for Civil Rights (OCR), Catherine Lhamon, said
that “the agreement in the Montana case represents the resolution of that
particular case and not OCR or DOJ policy.”
“Assistant Secretary Lhamon’s clear statement that the Montana agreement does
not represent OCR or DOJ policy—meaning it’s not much of a ‘blueprint’—should
come as a great relief to those who care about free speech and due process on
our nation’s campuses,” said FIRE President Greg Lukianoff. “Colleges have been
bewildered
trying to reconcile their obligations under the First Amendment with
the requirements of the ‘blueprint’—essentially an impossible task. OCR and DOJ
now need to directly inform our nation’s colleges and universities that they
need no longer face that dilemma.”
Recent actions from OCR further suggest that the worst features of the
Montana settlement are not being required of public colleges, indicating that
OCR no longer regards the controversial components of its May agreement as a
blueprint for all colleges. Indeed, the actual policies adopted by the
University of Montana itself this fall
depart from the broad definition announced by the blueprint.
For
example, the Montana agreement included an overly broad definition of punishable
sexual harassment: “any unwelcome conduct of a sexual nature,” including “verbal
conduct” (i.e., speech). This definition could potentially cover risque movies,
stand-up comedy routines, and even books like Lolita. Yet a comparable
agreement reached in late September between OCR and the State University of New
York system lacked this provision,
instead recognizing that Title IX only prohibits behavior that rises to the
level of creating a “hostile environment”—a far more specific, speech-protective
threshold.
Further, in Lhamon’s letter to FIRE, she states that OCR’s understanding of
hostile environment harassment is “consistent” with the definition of sexual
harassment in the educational context provided by the U.S. Supreme Court in
Davis v. Monroe County Board of Education(1999)—a definition FIRE and
other civil liberties organizations have
repeatedly
urged
OCR to recognize.
“After a national outcry from concerned citizens and civil liberties groups this
summer, OCR appears to be rethinking its ill-conceived attempt to deem vast
swaths of student and faculty speech ‘sexual harassment.’ This is a welcome
development,” said FIRE Director of Legal and Public Advocacy Will Creeley. “A
great deal of work remains to be done, but advocates of free speech and academic
freedom on campus should be cheered by this progress.”
Serious First Amendment and due process problems remain with the blueprint and
other recent OCR pronouncements on sexual harassment, however.For example,
Lhamon’s letter defended a provision in the Montana agreement allowing the
university to discipline students for sexual misconduct beforea hearing to
determine whether misconduct occurred.
Additionally, an unjustifiable requirement in the Montana agreement specified
that faculty members who do not attend trainings on the university’s new,
questionable policies will have their names and titles reported to the
Department of Justice, sparking complaints
from University of Montana faculty. University of Montana Legal Counsel Lucy
France told the Missoulian earlier this month the requirement has been
dropped; attendance will now be reported per
department, rather than on an individual basis. Concerns remain,
however, that individual faculty members will still be identifiable.
“The sooner that OCR informs colleges nationwide that the Montana agreement does
not require the abandonment of civil liberties on campus, the better,” said
Creeley. “Combating the problem of sexual assault on campus does not require
sacrificing student and faculty rights. FIRE stands ready to work with OCR and
campuses nationwide towards lasting, lawful policies that will actually address
the challenges our campuses face.”
FIRE is a nonprofit educational foundation that unites civil rights and civil
liberties leaders, scholars, journalists, and public intellectuals from across
the political and ideological spectrum on behalf of individual rights, freedom
of expression, academic freedom, due process, and rights of conscience at our
nation’s colleges and universities. FIRE’s efforts to preserve liberty on
campuses across America can be viewed at thefire.org.
Contact: Will Creeley, Director of Legal and Public Advocacy, FIRE.
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