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 before a 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.