Answering a Critic of Friday’s Open Letter to OCR

By January 9, 2012

Brett Sokolow’s response to our call for clarity on campus harassment standards from the Department of Education’s Office for Civil Rights is misleading and disappointingly inaccurate.

Commenting on FIRE President Greg Lukianoff’s op-ed in last Friday’s edition of The Washington Post, Sokolow—a risk management lawyer who has founded consulting organizations including the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA)—criticizes FIRE’s request that the Department of Education’s Office for Civil Rights (OCR) require those colleges accepting federal funding to enforce a clear, consistent, speech-protective definition for campus harassment.

Citing the continued maintenance of unconstitutional and illiberal harassment policies at colleges nationwide despite decades of court rulings striking down such policies, FIRE asked OCR to act, sending an open letter signed by a broad coalition of ten additional organizations: Accuracy in Academia, the Alliance Defense Fund Center for Academic Freedom, the American Booksellers Foundation for Free Expression, the American Council of Trustees and Alumni, Feminists for Free Expression, the Heartland Institute, the National Association of Scholars, the National Coalition Against Censorship, the Tully Center for Free Speech at Syracuse University, and the Woodhull Sexual Freedom Alliance.

I am pleased to respond to Sokolow’s points in turn.

OCR’s Shifting Harassment Definition and Silence on Freedom of Expression

First, while Sokolow admits that OCR’s April 4, 2011 Dear Colleague letter failed to reaffirm the speech-protective understanding of student-on-student harassment standards it announced in its 2003 Dear Colleague letter, he nevertheless contends that OCR’s recent silence on freedom of expression is not a change or reversal of OCR’s position. This is plainly incorrect.

In OCR’s 2003 letter, then-Assistant Secretary for Civil Rights Gerald Reynolds announced “in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution,” defining harassment as behavior so “severe, persistent or pervasive” that it “limit[s] or den[ies] a student’s ability to participate in or benefit from an educational program.” Crucially, Reynolds made explicit that this standard contained an objectivity component, noting that “OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position.” As such, the standard enunciated in OCR’s 2003 letter is notably more speech-protective than that voiced in the April 2011 letter, and a significant step towards the excellent standard announced by the Supreme Court in Davis v. Monroe County Board of Education (1999), which defined peer-on-peer harassment as behavior “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Contrary to Sokolow’s contention, the harassment standard suggested by OCR’s April 2011 Dear Colleague letter stands in sharp contrast to this previous understanding. In the April 2011 letter, OCR defines sexual harassment simply as “unwelcome conduct of a sexual nature,” explaining only that “the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This is a far cry from the speech-protective definition contained in both the 2003 letter and OCR’s 2001 Revised Sexual Harassment Guidance, not to mention the definition announced in Davis itself.

Indeed, while the April 2011 letter references the 2001 Guidance, it offers a definition of harassment that is significantly different from the definition and accompanying discussion of harassment contained in the 2001 Guidance. The definition offered in the April 2011 letter makes no mention of any objectivity requirement, whereas the 2001 Guidance emphasizes that the severity, pervasiveness, and both the objective and subjective impact of the behavior in question must be considered. In the 2001 Guidance, OCR also explicitly notes that its understanding of hostile environment harassment was informed by and is consistent with the Supreme Court’s definition in Davis, which contains an objectivity requirement. Making matters yet worse, the April 2011 letter is entirely silent on the First Amendment issues implicated in addressing allegations of harassment—a consideration the 2001 Guidance discusses at length. OCR’s silence is irresponsible, given the agency’s recognition in its 2003 letter of the widespread abuse of harassment rationales for restricting and punishing protected speech. For OCR to impose 19 pages of new guidance governing the enforcement of harassment prohibitions without once mentioning this continuing abuse is deeply troubling and must be rectified.

Accusing FIRE of dishonesty, Sokolow writes:

[L]et’s be intellectual honest [sic] and acknowledge that the April 2011 DCL did offer a definition of sexual harassment using the clear terms severe, pervasive or persistent. That protects a lot of speech. Lukianoff forgot that part.

FIRE makes no such acknowledgment because, contrary to Sokolow’s claim, the April 2011 letter offers no such definition. Indeed, the word “persistent” does not appear anywhere in Assistant Secretary Russlynn Ali’s 19-page letter. Nor does the phrase “severe, pervasive or persistent.” The only use of the word “pervasive” is found in footnote 10, in a quote from a federal appellate court decision defining rape as “severe, pervasive, and objectively offensive sexual harassment.” Sokolow’s characterization of the content of the April 2011 letter is therefore both wrong and misleading.

Sokolow’s dismissal of the importance of an objectivity requirement in defining sexual harassment is disappointing. Sokolow argues that defining sexual harassment as behavior that is subjectively “severe, pervasive or persistent” should be acceptable because, by his measure, this definition still “protects a lot of speech.” Fortunately, the First Amendment protects much more than what you, or I, or Brett Sokolow deems “a lot of speech.” First Amendment jurisprudence has made clear for decades that simply protecting what, in one person’s subjective estimation, is “a lot of speech” is flatly unacceptable. Further, courts have long held that any violation of First Amendment rights constitutes an irreparable injury, and that First Amendment freedoms on college campuses are of particular concern, given the relationship between free speech on campus and the health of our democracy.

Under the “severe, pervasive or persistent” standard, which lacks an objectivity clause, the most hypersensitive student or administrator on campus may determine which speech is and is not punishable, no matter how unreasonable their judgment. This is no hypothetical concern. FIRE’s case archives from 12 years defending student and faculty rights demonstrate all too well that even the tamest or most clearly protected expression will be punished as harassment if it offends the wrong person or administrator. A 2005 case at the University of Central Florida in which a student faced charges for harassment after calling a fellow student “a jerk and a fool” on Facebook is but one example of many. Just ask Keith John Sampson, a student-employee at Indiana University—Purdue University Indianapolis found guilty of racial harassment for reading a book celebrating the defeat of the Ku Klux Klan in a 1920’s street fight with Notre Dame students. Or ask the staff of The Primary Source, a conservative student newspaper at Tufts University found guilty of harassment for publishing an article containing true but unflattering facts about radical Islam.

Thankfully, Sokolow’s faith in the ability of college administrators—that is to say, his clients—to subjectively determine what is and is not sexual harassment has been flatly rejected by federal courts. For example, in 2008’s DeJohn v. Temple University, the United States Court of Appeals for the Third Circuit struck down Temple University’s former sexual harassment policy, holding that because the policy failed to require that allegedly sexual harassing behavior “objectively” create a hostile environment, it provided “no shelter for core protected speech” and thus violated the First Amendment. Again, Davis is the Supreme Court’s only guidance with regard to hostile environment harassment in the educational context. Ignoring Davis, which precisely balances the need to prohibit true harassment with the importance of protecting freedom of expression, only sows confusion and invites continued abuse of harassment rationales.

Enforcement Standards 

Sokolow agrees with FIRE’s coalition and acknowledges that if OCR were to require colleges to implement the Davis standard, it would “effectively protect free speech.” Nevertheless, he does not think OCR should do so, offering two reasons.

First, Sokolow argues that the harassment standard used by OCR can be less stringent than the Davis standard because monetary damages aren’t at issue. In Davis, the Supreme Court confronted the question of when a school could be held liable in a lawsuit for monetary damages filed by a student victim of harassment. The Court held that a grade school properly faced financial liability after it demonstrated “deliberate indifference” to serious, ongoing student-on-student harassment. In reaching this conclusion, the Court formulated a definition of student-on-student harassment. The Court determined that to avoid liability, schools must respond to conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Sokolow contends that because monetary damages aren’t at stake in OCR complaints, the OCR standard for harassment should be lower than the Davis standard. In other words, Sokolow argues that it should be easier to find students guilty of sexual harassment than it should be to find a school guilty of failing to respond to sexual harassment. This is a revealing argument: It is perhaps unsurprising that Sokolow, a risk management lawyer, would favor an exacting objective standard when it comes to protecting the financial interests of colleges and universities—his clients. But when the rights of students are at issue, Sokolow is comfortable with a lower, entirely subjective standard, seemingly without thought to those students who will be found guilty of “sexual harassment” for speech protected by the First Amendment. And as FIRE knows all too well, the impact of a harassment finding on a student or faculty member can be devastating, ending careers and ruining lives. But because monetary damages (in the legal sense) aren’t at issue—just academic careers!—Sokolow thinks a lower standard is not only acceptable, but desirable. Tellingly, Sokolow offers no explanation as to why such an unequal arrangement is just, desirable, or even more efficient.

This lack of justification is galling, given the careful policy considerations at work in the Supreme Court’s definition of hostile environment harassment in Davis. In designing the Davis standard, the Court was cognizant of free speech concerns and the consequences of defining harassment too loosely in the academic context. Davis’s precision is no accident; it purposefully recognizes the potential threat to freedom of speech presented by an inexact definition of harassment and thus ameliorates the costs of requiring institutions to police student interaction to an undesirable or unworkable degree.

Private Colleges

Second, Sokolow opposes FIRE’s call for OCR to mandate the Davis standard because “if OCR adopted the mandate FIRE is pushing, it would impact all colleges, not just public campuses, and not all campuses are subject to the 1st Amendment.” Sokolow contends that our request to OCR is “a sneaky, veiled and backhanded way for FIRE to seek administratively for OCR to subject all campuses to the 1st Amendment for purposes of sexual harassment rule enforcement (something it has been trying to do for some time).” This is incorrect in several crucial respects.

First, contrary to Sokolow’s assertion, FIRE has always carefully respected the crucial distinction between public and private institutions with regard to student rights and institutional autonomy. We have always recognized that private universities enjoy their own First Amendment right to determine the parameters of acceptable speech at their institutions.

However, all institutions receiving federal funding—that is to say, virtually every college and university in the country, both public and private—must comply with OCR’s interpretation of the legal obligations created by federal anti-discrimination statutes like Title IX. OCR has legal authority to dictate how colleges define harassment for the purposes of compliance with these statutes. Every private college, no matter what its institutional values or mission, must prohibit and address sexual harassment on its campus if it is to continue receiving federal funding, and it must do so in a way that complies with OCR’s definition of sexual harassment.

If OCR is going to issue extensive guidance to virtually every university in the country regarding the prohibition of discriminatory harassment, it needs to provide a clear definition of discriminatory harassment. We believe that definition is provided by Davis. Outlawing expression that meets the Davis standard presents no serious threat to freedom of expression. FIRE has consistently recognized that those wanting to start or join their own speech-restrictive university have a freedom of association right to do so. Religious universities may promulgate speech codes preventing blasphemy, for example, as long as they’re very clear to matriculating students that this is their practice. Brigham Young University and Liberty University, for example, leave no question in their materials that they have restrictive practices regarding speech.

Contra Sokolow, mandating the Davis standard for private universities like BYU wouldn’t prevent them from restricting certain types of speech in accordance with their missions. Any private institution could still ban, say, “derogatory speech” as part of a general speech or civility code. What it wouldn’t be able to do, however, is to identify that ban as having been necessitated by federal statutes outlawing discriminatory harassment. The definition of harassment, at least for Title IX compliance purposes, would be supplied by Davis.

Forcing private universities to be honest about the source of their restrictions on speech is important. What FIRE and our allies are trying to achieve here is to eliminate the use of the “government made us do it” argument that has served as an excuse for campus harassment-based speech codes since the 1980s. Indeed, this is the primary rationale used to justify the continued maintenance of speech codes and campus speech punishments today, even when the expression in question has almost nothing to do with sex, race, or other status characteristics.

The 2003 Dear Colleague letter from the Office for Civil Rights threads this needle well. The letter makes clear that a private university may choose to pass a more restrictive code, but may not claim that it is doing so because of a federal requirement. As then-Assistant Secretary Reynolds wrote:

There has been some confusion arising from the fact that OCR’s regulations are enforced against private institutions that receive federal-funds. Because the First Amendment normally does not bind private institutions, some have erroneously assumed that OCR’s regulations apply to private federal-funds recipients without the constitutional limitations imposed on public institutions. OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.

FIRE’s aim is to prompt OCR both to reaffirm the 2003 letter and to provide clear guidance for precisely what is meant by the federal government with regard to prohibiting harassment. Contrary to Sokolow’s erroneous assertion, mandating Davis would not restrict the rights of private colleges—rather, it would end the significant ambiguity under which private universities currently labor. FIRE strongly believes in the right of private colleges to exercise their own First Amendment right to freedom of association and the concordant right to set their own restrictions on speech as they see fit. We just seek to ensure that these additional restrictions are clearly identified for what they are.

Finally, as a parting shot, Sokolow argues that FIRE is “asking OCR to issue new rules while simultaneously attacking in other forums OCR’s authority to issue the DCL in the first place.” This argument, too, is without merit.

The Administrative Procedure Act (APA) requires federal agencies to hold a public “notice and comment” period before instituting new agency rules. FIRE has criticized OCR’s classification of its April 2011 Dear Colleague letter as a “significant guidance document” for purposes of the APA, because by doing so OCR avoided subjecting its guidance to public scrutiny and discussion. We strongly believe that the public would have benefited from a robust discussion of the fact that OCR’s April 2011 letter seriously reduces the due process rights afforded students and faculty members accused of sexual harassment or sexual assault. But surely criticizing OCR’s rulemaking procedures doesn’t preclude FIRE’s ability to ask the agency to exercise its authority in a way that fully acknowledges students’ rights instead of eroding them. Again, Sokolow’s criticism is unwarranted.

Conclusion

Sokolow’s arguments against OCR implementing the Davis standard are misleading and unfounded. OCR should heed the request of FIRE and our allies and act to protect student expression while simultaneously ensuring that true harassment is prohibited and addressed on campus. As Greg wrote in The Washington Post:

By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected. In one move, OCR could rid campuses of a substantial portion of all speech codes while protecting institutions from losing still more First Amendment lawsuits. Most important, by recognizing the Davis standard, the OCR would send a message that free speech and free minds are essential to — not incompatible with — the development of creative, critical and innovative thinkers on our nation’s campuses.