How Colleges Label Protected Speech as 'Harassment'--And Why the DOJ and ED Have Made Matters Worse

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One would think the Departments of Justice and Education would be mindful of citizens' constitutional rights. Unfortunately, recent developments fly in the face of that assumption: New regulations from the DOJ and ED significantly harm student and faculty free speech rights.

On May 9, the departments issued a joint findings letter and resolution agreement concluding their investigation of the University of Montana's practices regarding sexual harassment and sexual assault. Rather than limit their findings and agreement to the problems at that particular institution, however, the DOJ and ED went out of their way to harm campus free speech everywhere. Declaring their letter a "blueprint for colleges and universities throughout the country," the departments broke with clear legal precedent defining sexual harassment in the educational setting--and with previous guidance from ED's own Office for Civil Rights (OCR).

The result? Under a breathtakingly broad mandate, universities must now define sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct" (i.e., speech), and must enforce those policies against student and faculty expression. Schools that do not comply risk losing their federal funding--which almost every American college or university, private or public, currently receives.

The upshot is that in order to comply with this unconstitutional directive, many institutions will crack down on protected speech as "sexual harassment."

But what exactly is "unwelcome" speech "of a sexual nature"? More importantly, what does it not cover? As the Foundation for Individual Rights in Education (FIRE, where I work) has pointed out, this flawed standard encompasses everything from a classroom discussion of D.H. Lawrence's Lady Chatterley's Lover to a debate about gay marriage or reproductive choice, and plenty in between. It also includes any sexually themed joke or comment, or even an awkward request for a date.

Under the "blueprint," if one individual subjectively claims offense, a perfectly innocuous speaker can be labeled a sexual harasser. This is so even if the complaining individual is not the intended recipient of the message and simply happens to overhear it. Crucially, the claim of offense does not even have to reasonable, because the DOJ and ED rejected using an objective, "reasonable person" element in their standard--a serious departure from Supreme Court precedent.

Unfortunately, schools are already proficient at misusing harassment law to restrict protected student expression, meaning the new federal directive only makes matters worse. Over the years, FIRE has witnessed student after student (or professor) censored and punished under overbroad harassment policies.

Consider, for example:

• In 2010, Syracuse University charged a law student with harassment and subjected him to a prolonged investigation for his alleged involvement in an anonymous, satirical blog about life in law school (a fake-news site that emulated the style of The Onion).

• In 2011, the University of Denver found a tenured professor guilty of sexual harassment for teaching on sexual topics in a graduate-level course on "The Domestic and International Consequences of the Drug War." One of the course's themes was "Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs," focusing in part on the negative effects of "purity crusades."

• The University of Central Florida charged a student with harassment through "personal abuse" for calling a fellow student a "jerk and a fool" on a Facebook page.

• Just last fall at SUNY Oswego, a student who emailed hockey coaches at rival schools as part of his research for a class assignment about the university's men's hockey coach was alleged to "defame, harass, intimidate, or threaten another individual." Because he said in his email that "what you say about [SUNY Oswego's coach] does not have to be positive," the student was summarily suspended and ordered to vacate his campus residence.

• The University of New Hampshire evicted a student from his dorm room for posting fliers joking that freshman women could lose the "Freshman 15" by walking up the dormitory stairs.

• Professor Jammie Price of Appalachian State University was placed on administrative leave last year after students alleged that she had created a hostile environment in her sociology class. Price's "offenses" included making critical comments about the university and its student-athletes and showing a documentary that critically examines the adult film industry.

• Clemson University charged a student with harassment, along with three separate offenses, after he told a university administrator via email that "I'm not going to let you bully the organization into doing the things you want us to do or perceive as important" with regard to his group's choice not to participate in a student organization fair, and joked that she was "smoking crack."

• East Georgia College ordered a professor to resign his position or be fired, simply because he criticized the college's sexual harassment policy during a faculty training session. When the professor refused to resign, he was escorted from campus by police.

• Indiana University - Purdue University Indianapolis found a student-employee guilty of racial harassment purely for reading a book by himself during work breaks. It's no exaggeration to say that the school literally judged a book by its cover.

• Brandeis University found a professor of nearly 50 years guilty of racial harassment for using the word "wetbacks" in order to criticize it in his Latin American Politics course.

• To demonstrate just how far back the problem goes, the University of Michigan in the late 1980s enacted and enforced a discriminatory harassment policy that chilled and restricted a substantial amount of academic speech. This included a dental student's concerns about the difficulty of a preclinical class for minority students and a psychology graduate student's views relating to differences in mental abilities between the sexes and races. The latter student eventually challenged this speech code in federal court, leading to the first of many court decisions over the following two decades striking down unconstitutional harassment policies.

These cases represent only the tip of the iceberg when it comes to university abuses of harassment rationales over the years. (Many more cases are discussed in FIRE President Greg Lukianoff's book, Unlearning Liberty: Campus Censorship and the End of American Debate.) Suffice it to say that we can expect to see many more of these cases under the new federal directive. Sadly, student and faculty speech rights will continue to twist in the wind.

So far, the federal government's response to criticism from FIRE and many other corners has been woefully insufficient, falling well short of the clarification needed to secure free speech rights on university campuses.

FIRE will keep putting pressure on the DOJ and ED to issue an immediate retraction and clarification. In the meantime, I invite you to read our "Frequently Asked Questions" about the blueprint, and to let these federal departments know that free speech must be protected on campus.

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