Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes

Category: Free Speech

The U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.

After proclaiming itself to be a “blueprint” for all schools, the Departments’ May 9, 2013, letter to the University of Montana states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

The blueprint requires university staff to relay all sexual harassment complaints to a Title IX Coordinator, who must keep records of the complaints indefinitely, even if the alleged speech is obviously protected by the First Amendment. Further, every case must be investigated by the school. In some circumstances, universities may even punish a student before he or she is found guilty of any offense.

With the very real threat that a student could be punished for speech about sex regardless of the context, campus speech will be substantially chilled. Further, at universities that attempt to follow the Departments’ “blueprint,” students might find their educational careers interrupted or even ended because of the school’s response to speech that is protected by the First Amendment.

ED and DOJ have effectively encouraged the abuse of harassment policies—abuse that has already been taking place for decades. At the same time, the agencies have imposed a long list of requirements with which it would be nearly impossible for UMT to comply. It is in the best interest of all members of the academic community that colleges and universities fight back against this unconstitutional mandate.
























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      According to the Department of Justice and Department of Education, speech ranging from Oscar Wilde to The Vagina Monologues could count as punishable sexual harassment. That hurts us far more than it helps. Originally aired on May 13, 2013 Hosted by:  Alyona Minkovski Guests: Nathan Harden @NathanHarden (Nashville, TN) Author, Sex and God at Yale Greg Lukianoff @glukianoff (Brooklyn, NY) President of the Foundation for Individual Rights in Education Elizabeth Nolan Brown @enbrown (Brooklyn, NY) Editor-in-Chief, Blisstree.com  

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      May 10, 2013

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      April 29, 2014

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      December 30, 2013

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      December 27, 2013

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      November 21, 2013

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    • Smoke and Mirrors: Four Clarifications About the ‘Blueprint’

      November 5, 2013

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    • University of Montana Faculty Fight Back Against New Policies

      October 2, 2013

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    • Stephen Henrick on the Sexual Assault Case OCR Ignored

      October 1, 2013

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    • Feds Approve University of Montana Sexual Harassment Policy That Threatens Speech; Faculty Who Refuse Training to Be Reported to Federal Government

      October 1, 2013

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    • U. of Montana Faculty Criticize Mandatory Reports to Government on Sexual Misconduct Training Attendance

      September 27, 2013

      I teach a legal writing class on Wednesday nights, and I take attendance because my school requires it. While the school may have any number of uses for such records (proof for accreditation, for example), the idea of schools taking attendance is generally uncontroversial. After all, it’s not as if the federal government is demanding to know the names of people who don’t show up to my class. Alas, things are not so simple at the University of Montana. As FIRE has reported extensively, this past May the Departments of Education and Justice entered into a resolution agreement with the […]

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      September 12, 2013

      Today, FIRE President Greg Lukianoff sent a letter to Catherine Lhamon, the new head of the Department of Education’s Office for Civil Rights (OCR), addressing FIRE’s concerns regarding recent OCR pronouncements and their impact on student and faculty rights. Lukianoff’s letter responds to two letters FIRE received from former Acting Assistant Secretary Seth Galanter in the past several weeks regarding freedom of expression and due process rights on our nation’s campuses.  In his letter, Lukianoff congratulates Assistant Secretary Lhamon on her appointment and invites her to work with FIRE to address remaining civil liberties concerns on campus:  Given your extensive experience […]

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      WASHINGTON, September 10, 2013—The University of Montana’s new sexual harassment policy, adopted in late August shortly after the start of classes, does not contain the broad definition of “sexual harassment” that sparked months of national criticism led by the Foundation for Individual Rights in Education (FIRE). Drafted in consultation with the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ), the new policy defines sexual harassment more narrowly and promises to comply with “free speech requirements for students and employees.” Troublingly, however, the Departments have thus far failed to officially approve the policy. The agencies’ approval is required […]

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      September 3, 2013

      For Professor Dave, nearly 50 years of working and studying at colleges and universities has been quite the rollercoaster ride.Being a student and professor of philosophy, Professor Dave has a deep passion for challenging conventional wisdom and exploring new ideas. He was a student at the University of California, Berkeley in the 1960s when the free speech movement swept campus, and he naturally gravitated toward its message of academic freedom and unrestricted expression.But Professor Dave was dismayed in the mid-80s to see the rise of speech codes on campus, including at the University of Michigan, where he taught. Often hidden […]

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    • Citing Centrality of ‘Robust and Discordant Expressions’ to University Life, OCR Dismisses Complaint of Anti-Semitism Against Berkeley

      August 30, 2013

      Last week, the Department of Education’s Office for Civil Rights (OCR) dismissed a complaint (PDF) by Jewish students against the University of California, Berkeley. The complaint had alleged that anti-Israel protests on Berkeley’s campus created a hostile environment for Jewish students.  Explaining its decision to dismiss the complaint, OCR wrote: In the university environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience. In this context, the events that the complainants described do not constitute actionable harassment. It is stunning to hear OCR speak […]

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    • New Student Orientation Has Started at U. Montana; Still No New Policies Posted

      August 23, 2013

      With first-year law students on their third day of class, and undergrads on their second day of orientation, it’s long past time for the University of Montana (UMT) to reveal its newly revised policies concerning sexual misconduct. Surprisingly, UMT’s old policy on sexual harassment remains on its website, leaving students and faculty unsure about what exactly is prohibited this school year and what must be reported. As detailed in the resolution agreement, revised policies must be approved by the Departments of Education and Justice before being fully implemented. Perhaps the revised policies are stuck at this stage of the process […]

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    • Schools Need Not Violate Basic Rights to Take Sexual Misconduct Seriously

      August 16, 2013

      Yesterday, I had a letter to the editor published in The Philadelphia Inquirer responding to an op-ed the paper published last week. The op-ed (“Helping make campuses safer,” Aug. 8), written by Carol E. Tracy and Terry L. Fromson of the Women’s Law Project, rightly notes the lifelong consequences for victims of sexual misconduct. However, the piece suggests that the recent efforts from the federal government that seek to address the problem are appropriate, despite criticism from many civil rights advocates that the efforts violate basic free speech and due process rights. Given word count restraints, my letter to the […]

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    • Greg Lukianoff on Changes in Campus Free Speech in ‘The Huffington Post’

      August 15, 2013

      In 2003, FIRE President Greg Lukianoff and co-founder Harvey Silverglate published an article (PDF) in The Chronicle of Higher Education discussing the state of free speech in higher education and the prevalence of speech codes on college campuses. Since then, FIRE has been remarkably successful in fighting unconstitutional speech codes through litigation and public awareness campaigns. In an article for The Huffington Post published last week, Greg asks, “What has changed since our 2003 article, and what does that change—or lack thereof—mean for our nation’s campuses?” A decade later, Greg discusses the progress that has been made and, more importantly, the changes […]

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    • High School Sexual Harassment Case Illuminates Key Points About ‘Blueprint’

      August 14, 2013

      On July 9, a federal district court in Pennsylvania granted a high school history teacher’s motion for summary judgment over a student’s claim that his manner of teaching “Twentieth Century History” amounted to sexual harassment. The case, Young v. Pleasant Valley School District, reaffirms the importance of allowing open discussion on topics that some students might find offensive or uncomfortable to hear, particularly in the school setting. FIRE has emphasized this principle countless times, most recently in light of the Departments of Education (ED) and Justice’s (DOJ’s) “blueprint” for campus sexual harassment policies. In Young, plaintiff M. Young alleged that […]

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    • The End to My ‘Sexy’ Academic Career

      July 26, 2013

       Madeline Gootman is a FIRE summer intern. As most of my friends will tell you, I am an outspoken young woman when it comes to matters of sexuality and sexual health. I recently joined the Vanderbilt Peer Sex Educators, an organization of students formed to increase the campus dialogue surrounding sexual health. In addition to my extracurriculars surrounding sexuality (I also work at the Women’s Center on campus), I am majoring in Women and Gender Studies.  After hearing about my very feminist list of extracurriculars, a reasonable person might assume that I would not have a problem with the May 9 […]

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    • Walter Olson Tackles the ‘Blueprint’

      July 19, 2013

      Last week on The Torch we recommended checking out Cato Institute Senior Fellow Walter Olson’s article in Commentary on the historical context and future repercussions of the Departments of Education and Justice’s May 9 “blueprint” for campus sexual harassment policies. Previously subscription-only, the article is now available for free on Commentary’s website and is still well worth a read.

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    • U. of Montana Deadline Passes: Where Are the New Policies?

      July 19, 2013

      Those who oppose the Departments of Education and Justice’s May 9 “blueprint” for campus sexual harassment policies may recall that the University of Montana (UMT) was instructed in its resolution agreement with the Departments to adopt revised sexual misconduct policies by July 15 (PDF).As far as we at FIRE can tell, there are no signs that UMT has met this deadline for policy implementation. Perhaps most critically for purposes of preserving students’ rights, the sexual harassment policy on UMT’s website is the old one, which means that even if UMT administrators have written a new policy and intend to enforce […]

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    • ‘Meese v. Keene’ Sheds Light on Danger of the ‘Blueprint’

      July 18, 2013

      In the continuing debate over the new federal “blueprint” for university sexual harassment policies, some have argued that broadly defining sexual harassment as “any unwelcome conduct of a sexual nature”—including “verbal conduct”—is unproblematic because the definition is supposedly “only” for campus reporting purposes. What this argument overlooks is that having your protected expression officially labeled by the government with such a stigmatized, pejorative term is a real harm, whether the speech is formally punished or not. Don’t just take our word for it; the Supreme Court reached the same conclusion in the case of Meese v. Keene, 481 U.S. 465 […]

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    • Federal Campus Sexual Harassment Policy Draws Free Speech Concerns

      July 17, 2013

      by Tyler Kingkade The Huffington Post   The federal government is facing pressure from civil-liberties advocates to back down from a policy meant to curb sexual harassment at colleges and universities — just as sexual-assault survivors demanded in a protest this week that the Education Department do more to punish colleges that fail to address campus assaults. A coalition of free-speech advocates, led by the Foundation for Individual Rights in Education (FIRE), wrote an open letter to the U.S. Department of Education’s Office for Civil Rights and the Department of Justice Tuesday calling for officials to retract a “blueprint” for campus sexual […]

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    • FIRE’s Robert Shibley on the Politically Diverse Opposition to ‘Blueprint’

      July 17, 2013

      In an article for The Daily Caller today, FIRE’s Robert Shibley explains why 17 organizations across the political spectrum have signed on to FIRE’s letter asking the Departments to retract the unconstitutional demands set forth in their May 9 “blueprint” letter. In his article, Robert notes: Commentator after commentator has remarked on how gridlocked and stalemated our politics seems these days. But when it comes to our First Amendment rights, there’s a shocking amount of common ground. Signatories to yesterday’s letter include conservative, liberal, and libertarian organizations, as well as individuals ranging from a former president of the ACLU to […]

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    • Schools Should Realize That ‘Davis’ Is the Solution

      July 16, 2013

      As most Torch readers and FIRE followers know, on May 9 the Departments of Justice (DOJ) and Education (ED) entered into a settlement agreement, which they referred to as a “blueprint,” with the University of Montana. Today, FIRE and a broad coalition of organizations and distinguished civil libertarians, attorneys, and academics sent DOJ and ED a letter urging the Departments to retract the blueprint immediately. In the blueprint, “sexual harassment” is problematically defined as “unwelcome conduct of a sexual nature,” including “verbal conduct.” The blueprint explicitly rejects the use of an objective, “reasonable person” standard in evaluating whether conduct constitutes sexual harassment. Without the objective component, […]

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    • On Feds’ ‘Blueprint,’ ‘Savannah Morning News’ Opinion Is Appropriately Snarky

      July 16, 2013

      An opinion piece posted on Savannah Morning News’ website Friday laid out some of the ways in which the Departments of Education and Justice’s May 9 “blueprint” letter makes the old problem of overzealous “university campus speech police” even worse.  On the Departments’ definition of sexual harassment as “any unwelcome conduct of a sexual nature,” including speech, the article says:  What constitutes “unwelcome?” Arguably — and the letter provides no assurances to the contrary — just about anything anyone finds offensive.Sexual harassment is a serious issue. But we discourage meaningful action to prevent it when we trivialize the issue.That’s what […]

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    • Enforcement for the Enforcers

      July 16, 2013

      by Allie Grasgreen Inside Higher Ed   WASHINGTON – Annie Clark, a recent college graduate whose activism has helped spur an unprecedented movement to expose sexual assault on college campuses, got a pretty unforgettable present for her birthday this year. There were only a few dozen students rallying alongside Clark outside the U.S. Education Department here on Monday, but their shouts – which, for the first time in a long time, felt celebratory – were loud enough to lure Under Secretary Martha Kanter from the department’s concrete fortress. “I’ll deliver these to Secretary [Arne] Duncan right away,” Kanter said as […]

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    • From FIRE, more on that Office of Civil Rights ‘blueprint’

      July 16, 2013

      by Walter Olson Overlawyered   At the Foundation for Individual Rights in Education, Greg Lukianoff offers “Four Key Points About Free Speech and the Feds’ ‘Blueprint’“. He notes that overbroad notions of harassment have been the key driver of university speech codes and disciplinary action against dissenting and unpopular speakers, that DoJ and ED lack credibility in their new claim that the rules are only meant to encourage reporting as distinct from discipline, and that the implications go far beyond sexually oriented speech or flirtation to include wide swaths of controversial speech having nothing to do with sex. More: “OCR […]

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    • Four Key Points About Free Speech and the Feds’ ‘Blueprint’

      July 15, 2013

      It’s been more than two months since FIRE and the higher ed community were shocked by a letter issued jointly by the Departments of Education and Justice to the University of Montana. FIRE staff have blogged extensively about the Departments’ “blueprint” for campus sexual harassment in the last 10 weeks, but there are four crucial points that I believe bear special emphasis. 1. Overbroad and vague harassment rationales have been the primary justification and legal theorybehind campus speech codes since the 1980s.  In one sense, the attempt to stretch the definition of harassment beyond all recognition is nothing new. Speech codes came into vogue on campuses […]

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    • Walter Olson on ‘Sentence First, Verdict Afterward’ in Campus Sexual Harassment Cases

      July 11, 2013

      In the July/August issue of Commentary, Cato Institute Senior Fellow Walter Olson puts the Departments of Education (ED) and Justice’s (DOJ’s) May 9 Title IX compliance “blueprint” in its historical context and emphasizes several of its alarming repercussions. Olson’s article reviews the regulatory foundations for the “blueprint,” including the April 4, 2011, “Dear Colleague” letter from ED’s Office for Civil Rights (OCR) that required campus disciplinary hearings to use a “preponderance of the evidence” standard of proof for determining wrongdoing in cases of sexual misconduct. A reasonable evidentiary standard is not the only procedural safeguard that has been abandoned—at many […]

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    • OCR’s Logical Fallacy

      July 10, 2013

      Dogs are four-legged creatures, right? Does that also mean that all four-legged creatures are dogs? Of course not! That is, unless you work for the Department of Education’s Office for Civil Rights, in which case apparently it does. FIRE and other critics of the May 9 federal Title IX compliance “blueprint” strenuously object to the blueprint’s expanded definition of sexual harassment. Specifically, in its letter to the University of Montana detailing the university’s failure to comply with Title IX, the Departments of Education and Justice wrote: [T]he University’s policies conflate the definitions of “sexual harassment” and “hostile environment.” Sexual harassment […]

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    • Please Explain Why Putting University Administrators in Charge of Judging Speech Is a Good Idea

      July 9, 2013

      Architect Rolls and Plans - Shutterstock My colleagues have done a thorough job of explaining why defenders of the Department of Education’s “blueprint” for preventing campus sexual harassment are on very shaky legal and logical ground. They have pointed out that some of ED’s allies have misquoted the findings letter and mocked Senator John McCain’s serious questions about the threat to free speech and about OCR’s authority to impose this blueprint. Other defenders of the blueprint have brushed away concerns by portraying its definition of sexual harassment as “any unwelcome conduct of a sexual nature” as simply a way of encouraging reporting. […]

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    • KC Johnson Decries Politically Polarized Defense of Feds’ ‘Blueprint’

      July 9, 2013

      Microphone with reflection - ShutterstockIn a thorough Minding the Campus blog entry, Brooklyn College Professor KC Johnson takes recent defenders of the federal government’s “blueprint” to task for forsaking civil liberties in favor of taking political potshots.  Echoing points FIRE made in our own responses to last week’s blueprint defenses from ThinkProgress and New York Magazine, Johnson decries the zero-sum, “us vs. them” partisan mentality on display:  That an influential U.S. senator expressed concern about the OCR’s efforts–a rare event, indeed–might have led to more robust public condemnation of the administration’s years-long assault on campus due process. Instead, if anything, the […]

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    • ‘Missoulian’ Response Illustrates Potential Repercussions of May 9 ‘Blueprint’

      July 8, 2013

      Cindy Weese and Kelsen Young wrote in a June 25 column for the Missoulian that, contrary to George Will’s arguments in his May 28 column, the Departments of Education and Justice’s May 9 “blueprint” for campus sexual harassment policies does not pose any danger to speech protected by the First Amendment. On Wednesday, reader Jeffrey Rentz wrote a thoughtful letter to the Missoulian in response, explaining how the blueprint could be used to censor professors who teach literature with sexual themes: [Y]ears ago one of our English Literature professors used a zucchini creatively to illustrate the bawdy nature of Chaucer’s Canterbury Tales. It […]

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    • Defending ‘Blueprint’? Better Read the Actual Text

      July 5, 2013

      In New York Magazine’s “The Cut” Wednesday, Kat Stoeffel reassured readers who might be concerned about problems with the Departments of Education (ED) and Justice’s (DOJ’s) May 9 “blueprint” letter. Unfortunately, her reassurances are based on incorrect information, making arguments contradicted by the text of the letter itself. Stoeffel writes: For reporting purposes, the agreement defined sexual harassment as “any unwelcome conduct of a sexual nature,” an expansion from the separate, legal standard for sexual harassment under Title IX: harassment “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The good news? […]

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    • Inaccurate ‘ThinkProgress’ Coverage of Blueprint Disappoints … Again

      July 3, 2013

      In a blog entry published this morning, ThinkProgress argues that the “blueprint” announced this past May by the Departments of Justice and Education doesn’t present a threat to student and faculty speech because it’s simply intended to encourage student reporting of sexual harassment. Sound familiar? It should. ThinkProgress made this same argument last month.  My colleague Joe Cohn and I offered a thorough response to ThinkProgress’ initial post. Joe and I explained in detail how the blueprint violates student and faculty First Amendment rights, offered examples of students and faculty punished for protected speech incorrectly labeled “harassment,” and pointed out […]

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    • ‘Missoulian’ on McCain, FIRE, and the U of Montana Settlement

      July 1, 2013

      The Departments of Education (ED) and Justice (DOJ) have been facing increasing criticism since Arizona Senator John McCain wrote to the DOJ last week demanding answers regarding its May 9 “blueprint” for university sexual harassment policies. Yesterday, the Missoulian’s Martin Kidston reviewed Senator McCain’s letter, which echoes FIRE’s concerns about the blueprint. In Kidston’s article, FIRE Legislative and Policy Director Joe Cohn explains a major problem with the blueprint:  “The most sensitive person offended on any side of the political spectrum can claim sex harassment and it has to be treated as such,” Cohn said. “The DOJ went overboard by […]

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    • John McCain Challenges DOJ On College Sexual Harassment Policy

      July 1, 2013

      by Tyler Kingkade The Huffington Post   Sen. John McCain (R-Ariz.) accused a group of lawyers with the Justice Department’s Civil Rights Division last week of “single-handedly” redefining the meaning of sexual harassment at colleges nationwide. Such a redefinition could violate the free speech rights of students and teachers, McCainargued in a letter to Attorney General Eric Holder. In May, following an investigation into how the University of Montana handles rape and sexual violence on campus, the Justice Department and the Education Department had jointly announced a “resolution agreement” that laid out a set of policy reforms for the school. The Foundation for […]

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    • MCCAIN DEMANDS SEX-ASSAULT ANSWERS FROM HOLDER

      June 27, 2013

      by Bob Unruh WND Education   Sen. John McCain, R, Ariz., who challenged Barack Obama for the White House in 2008, has demanded Obama’s attorney general, Eric Holder, answer why his agency is arbitrarily changing court-approved sex-assault standards for American colleges and universities. The dispute is raging over a settlement the DOJ with the University of Montana that inserts new language into requirements for the proper investigation and prosecution of sexual-assault allegations on campus. The new DOJ standard says that “any unwelcome conduct of a sexual nature” is sexual harassment, which critics already have argued could include unwanted flirting or […]

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    • Senator McCain Demands Answers from DOJ over Campus Censorship ‘Blueprint’

      June 26, 2013

      WASHINGTON, June 26, 2013—Arizona Senator John McCain sent a letter to the Department of Justice today challenging its recent settlement with the University of Montana. The Foundation for Individual Rights in Education (FIRE) has led national criticism of the May 9 settlement, which mandates a breathtakingly broad definition of sexual harassment and rejects the use of a “reasonable person” standard. The Department of Justice (DOJ) and the Department of Education (ED) proclaimed the joint settlement to be a “blueprint” for how colleges across the country must handle sexual misconduct allegations.  “We are grateful to Senator McCain for posing these crucially important questions […]

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    • Senator McCain Demands Answers from DOJ over Campus Censorship “Blueprint”

      June 26, 2013

      WASHINGTON, June 26, 2013—Arizona Senator John McCain sent a letter to the Department of Justice today challenging its recent settlement with the University of Montana. The Foundation for Individual Rights in Education (FIRE) has led national criticism of the May 9 settlement, which mandates a breathtakingly broad definition of sexual harassment and rejects the use of a “reasonable person” standard. The Department of Justice (DOJ) and the Department of Education (ED) proclaimed the joint settlement to be a “blueprint” for how colleges across the country must handle sexual misconduct allegations.  “We are grateful to Senator McCain for posing these crucially important questions […]

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    • United Educators Warns Admins: Keep Up With Legal Requirements, But Don’t Overreact

      June 24, 2013

      Earlier this month, United Educators (UE) Senior Vice President and General Counsel for Claims Management Robb Jones wrote an insightful article emphasizing the importance of protecting due process and free speech rights while addressing the issue of discrimination on college campuses, particularly in light of the May 9 federal “blueprint” for sexual harassment policies. As an insurer of many institutions of higher education and a provider of risk management resources, UE is faced with the same dilemma universities are: risk liability for violating Title IX, or risk liability for violating the First Amendment. Thankfully, Jones has advised higher education administrators […]

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    • Can the University of Montana Deliver the Constitutional, OCR-Compliant Sexual Harassment Policy It Promised?

      June 21, 2013

      Last week in Escalating Registers, Kenyon College student Henri Gendreau took a critical look at the controversy surrounding the Departments of Education and Justice’s “blueprint” for campus sexual harassment policies. Despite the fact that the Department of Education’s Office for Civil Rights (OCR) has explicitly rejected the University of Montana’s standards for campus sexual harassment, UMT administrators remain confident that they can find a solution that works for everyone. FIRE is skeptical, to say the least. In Gendreau’s article, FIRE’s Robert Shibley challenged the assertion that students can engage in “sexual harassment” outside of the hostile environment context: “What OCR […]

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    • OCR Descends into Self-Parody in Front of Incredulous College Lawyers

      June 21, 2013

      Sometimes I think it would be fun to be a college lawyer. This isn’t one of those times. Yesterday, college lawyers from across the country gathered in Philadelphia (welcome, folks!) for the annual meeting of the National Association of College and University Attorneys (NACUA). Of course, the Department of Education’s Office for Civil Rights’ (OCR’s) latest efforts to enforce Title IX in new, interesting, and legally dubious ways have been a hot topic of discussion, and OCR’s John K. DiPaolo was on hand to address the assembled attorneys.  And boy, it sounds like a heck of a talk, forcing Inside […]

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    • Defending ‘Blueprint,’ SUNY Lawyer Tells Students, Faculty: ‘Trust Us’

      June 14, 2013

      Andrea Stagg, an associate counsel in the State University of New York’s Office of General Counsel, took to Inside Higher Ed yesterday to defend the Departments of Education and Justice’s May 9 "blueprint" for college sexual misconduct policies and practices.  I was pleased to see that the blueprint finally has a defender. After all, it’s been five weeks since the blueprint’s issuance—and while the newly mandated definition of "sexual harassment" has sparked a storm of criticism from commentators, attorneys, professors, and civil libertarians, it’s been very difficult to find anyone willing to publicly defend the constitutionality or wisdom of prohibiting […]

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    • Samantha Harris in ‘Inside Higher Ed’: Federal ‘Blueprint’ Imposes Huge Administrative Burden

      June 13, 2013

      In an op-ed published today on Inside Higher Ed, FIRE Director of Speech Code Research Samantha Harris outlines the tremendous administrative burden resulting from the University of Montana’s (UMT’s) agreement with the Departments of Justice and Education following an investigation into the school’s compliance with Title IX. The agreement, much of which focuses on enforcing a new sexual harassment policy that sweeps within its ambit protected speech, identifies more than 40 actions UMT must take in order to become Title IX compliant. If the university fails to take these actions, it risks losing federal funding. Some of these actions include:  […]

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    • How the ‘Blueprint’ Exacerbates the Already Problematic Abuse of ‘Harassment’ on Campus

      June 13, 2013

      Yesterday, I took to the pages of The Huffington Post to write about yet another worrying aspect of the Departments of Justice and Education’s "blueprint" for campus speech codes. Specifically, I discussed how the federal government’s new, broad definition of sexual harassment as "any unwelcome conduct of a sexual nature" makes worse an already bad situation on college and university campuses: the routine abuse of codes prohibiting "harassment" to censor and punish a wide range of constitutionally protected speech. Given schools’ frequent misunderstanding of harassment law, one shudders to think what will happen under the new directive from DOJ and […]

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    • A Massive Burden

      June 13, 2013

      Inside Higher Ed Earlier this month, the federal Departments of Education and Justice reached an agreement with the University of Montana following an investigation into the university’s compliance with Title IX of the Education Amendments of 1972 — an agreement that the agencies have said should serve as a “blueprint” for colleges and universities. The administrative burden of following this blueprint is so great that it seems as if the federal government has forgotten that universities exist for a purpose other than sheltering 18-to-21-year-olds from offensive speech. Worse still, the federal blueprint defines sexual harassment so broadly that even colleges and universities […]

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    • Freedom of Speech Lives On

      June 13, 2013

      by Andrea Stagg Inside Higher Ed   “Holding Colleges Responsible” is the latest example in a slew of articles – many of them quoting the Foundation for Individual Rights in Education – that are meant to alarm anyone with a voice, and the author’s use of selective quotes out of the Education Department’s Office for Civil Rights’s response to FIRE only fans the flame. At issue is whether the Education Department’s enforcement of a law and guidance that are designed to promote compliance with Title IX of the Education Amendments of 1972 and prevent sexual harassment put free speech at risk. […]

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    • How Colleges Label Protected Speech as ‘Harassment’–And Why the DOJ and ED Have Made Matters Worse

      June 12, 2013

      by Azhar Majeed The Huffington Post   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 agreementconcluding 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 […]

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    • Responding to Volokh’s Defense of the ‘Preponderance’ Standard

      June 12, 2013

      Since its issuance more than two years ago, FIRE has been leading the charge against the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011, “Dear Colleague” letter (DCL), which requires colleges and universities that accept federal funds (nearly all of them) to use the low “preponderance of the evidence” standard of proof when deciding campus sexual assault and sexual harassment cases. Earlier this month, First Amendment scholar, UCLA law professor, and longtime FIRE friend Eugene Volokh posted an entry on his popular blog The Volokh Conspiracy arguing in support of OCR’s mandate. Today, I was given the […]

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    • The Reality of the Government’s Reporting Requirement

      June 12, 2013

      Over the past month, FIRE has examined almost every angle of the federal government’s new sexual harassment "blueprint," demonstrating its myriad defects time and again. In his most recent article, Senior Vice President Robert Shibley tackles yet another one—the blueprint’s reporting requirement. The Office for Civil Rights has attempted to dismiss concerns about the mandate by arguing that it simply requires schools to report claims of sexual harassment, not necessarily punish those involved in such complaints. In a piece published today on Forbes.com, Robert argues that such a distinction is completely unfounded. He writes: To be clear: If expression is […]

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    • Reporting Your Neighbor’s Speech? Don’t Laugh, It’s Coming To A College Campus Near You

      June 12, 2013

      by Robert Shibley Forbes Online   In a May 9 letter to the University of Montana, the federal government said it would require nearly every college and university in America, public and private, to institute a reporting system for students to report all speech they see as unpatriotic to campus authorities. College administrators will to be required to conduct a thorough investigation of any such report and save all reports in a database. Outrageous, isn’t it? It recalls totalitarian regimes where neighbors are encouraged to inform on one another, and the authorities have wide discretion to determine whether you are […]

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    • This Crystal Ball is Clear: OCR Cannot Issue a ‘Blueprint’ Without Following APA Rulemaking Procedures

      June 11, 2013

      In an article published today in Inside Higher Ed, Allie Grasgreen reports on efforts to force colleges and universities to respond to sexual misconduct cases more aggressively. Grasgreen provides an overview of the efforts of the Department of Education’s Office for Civil Rights (OCR) in this vein, including OCR’s April 4, 2011, "Dear Colleague" letter (mandating use of the low "preponderance of the evidence" standard of proof in campus hearings for sexual misconduct allegations) and the "blueprint" for sexual harassment policies issued last month by OCR and the Department of Justice. In the article, Daniel Swinton, senior executive vice president of […]

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    • Holding Colleges Responsible

      June 11, 2013

      by Allie Grasgreen Inside Higher Ed   If Andrea Pino hadn’t been drafted to help with the University of North Carolina at Chapel Hill’s search for the employee who would handle Title IX complaints, the national landscape of sexual assault activism might not look so dramatically different than it did just a year ago. After being raped at an off-campus party in March 2012, Pino felt let down by the people and policies that were supposed to protect her (an academic adviser told her she was lazy when her experience impacted her performance in the classroom; other students told her […]

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    • Under New Definition, U of Montana Tutorial is Sexual Harassment

      June 10, 2013

      By now, Torch readers will be familiar with the Departments of Education (ED) and Justice’s (DOJ’s) new definition of sexual harassment, as stated in their May 9 letter to the University of Montana (UMT): "any unwelcome conduct of a sexual nature," including speech. As FIRE has explained, under the requirements of this federal "blueprint," speech constitutes "sexual harassment" if only one unreasonably sensitive person finds the speech offensive. Indeed, the ED and DOJ explicitly rejected the requirement in UMT policy that conduct be objectively offensive to a reasonable person before it could be properly deemed "sexual harassment." So naturally, applying […]

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    • Video: Greg Lukianoff of The FIRE discusses absurd new campus speech codes

      June 9, 2013

      by Aleister G College Insurrection   Greg Lukianoff recently sat down for an interview to talk about the new campus speech codes and their implications. Jim Epstein of Reason has the story and video. The Ongoing Battle for Free Speech on Campus: Greg Lukianoff at the Museum of Sex “The U.S. Department of Education just redefined harassment to make every single man, woman, and child arguably guilty of harassment in one fell swoop,” says Greg Lukianoff, who is the president of the Foundation for Individual Rights in Education (FIRE), which advocates for free speech rights on campus. Lukianoff is referring to a […]

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    • ThinkProgress’ Defense of ‘Blueprint’ Misses the Mark

      June 7, 2013

      Missing the Target - ShutterstockEarlier this week, ThinkProgress intern Kumar Ramanathan posted a blog entry on the organization’s website arguing that FIRE and others have misconstrued the Departments of Justice’s (DOJ) and Education’s (ED) May 9 "blueprint" for college and university sexual misconduct policies. In his piece, Ramanathan writes: The charge against the resolution has been led by the Foundation for Individual Rights in Education (FIRE), which alleges that the [Department of Education's Office for Civil Rights; "OCR"] OCR and DOJ have created unconstitutional speech restrictions by imposing "a breathtakingly broad definition of sexual harassment that makes virtually every student in […]

      » Read More

    • Protected Speech: Nothing to Investigate

      June 7, 2013

      Magnifying Glass Over Red Figure - ShutterstockLast week, the Department of Education’s Office for Civil Rights (OCR) issued a statement attempting to defend its controversial "blueprint" requiring colleges and universities to expand their definition of sexual harassment to include speech protected by the First Amendment. FIRE’s response can be read here, but one aspect of OCR’s response is worth closer examination.  One of the thrusts of OCR’s statement was that its blueprint does not necessarily require universities to punish protected speech, only to investigate all reports of "sexual harassment"—including subjectively offensive speech protected by the First Amendment—to make sure that a […]

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    • ‘Washington Post’ Rolls Up the ‘Blueprint’

      June 7, 2013

      The Washington Post ran a great online piece yesterday taking apart the Departments of Justice’s and Education’s May 9 "blueprint" letter that mandates speech codes on college campuses nationwide. The must-read effort, written by Alexandra Petri, exposes the many ways in which the problematic federal blueprint threatens students’ and professors’ free speech rights. Detailing the obvious flaws with defining campus sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct" (problems which are fully explained in FIRE’s "Frequently Asked Questions" document), Petri examines the breadth of what is truly banned:  Good news for English majors — the reading […]

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    • AAUP’s Committee on Women Expresses Deep Concern about Feds’ Speech Code ‘Blueprint’

      June 7, 2013

      Adding to the long list of those concerned about the new mandate for speech codes issued on May 9 by the federal Departments of Justice (DOJ) and Education (ED) is the American Association of University Professors’ Committee on Women. AAUP’s letter to the Departments praises their desire to create a "more equitable campus environment for women" but expresses deep concern with their redefinition of sexual harassment, which "eliminates the critical standard of ‘reasonable speech,’ and, in so doing, may pose a threat to academic freedom in the classroom." Appropriately, the letter focuses on the adverse effects this is likely to […]

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    • As sexual harassment ‘blueprint’ restricts verbal conduct: Things Not To Say On Campus

      June 6, 2013

      by Alexandra Petri The Washington Post   “Verbosity,” as Dan Quayle allegedly said, “leads to unclear, inarticulate things.” A 47-page open letter sent to the University of Montana by the Office of Civil Rights (OCR) at the Department of Education and the Department of Justice in May has been generating quite a bit of controversy. In response to a series of mishandlings of sexual assault cases on the university’s campus, the OCR set forth new, broad guidelines for what constituted sexual harassment, describing them as a “blueprint” for colleges nationwide. This is at best, badly written, and at worst, as the campus-individual-rights organization FIRE suggests, […]

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    • ‘Unlearning Liberty’: Harassment Codes Often Abused to Censor

      June 6, 2013

      Last month, when the Departments of Justice and Education joined together to mandate that virtually every college and university in the United States adopt speech codes that violate the First Amendment and decades of legal precedent, many were justifiably shocked. UCLA law professor and popular legal blogger Eugene Volokh said that the new mandate creates "a very dangerous situation," Washington Post columnist George Will wrote that it will encourage "censorship regimes" on campus, and Atlantic columnist and civil libertarian Wendy Kaminer didn’t mince words when she called it "an educational nightmare." Less surprising, perhaps, than the federal government’s attempt to […]

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    • Peter Wood Adds to ‘Blueprint’ Chorus in ‘Minding the Campus’

      June 6, 2013

      The drumbeat goes on as FIRE and numerous media outlets and commentators continue to criticize the Departments of Justice and Education for their May 9 "blueprint" mandating unconstitutional speech codes on college campuses nationwide.  Joining the chorus this week is Peter Wood, president of the National Association of Scholars, who writes for Minding the Campus. Surveying the potential damage from the federal blueprint, Wood states: I don’t expect that [the ED's Office for Civil Rights] will voluntarily relinquish its new rules, nor will colleges and universities generally resist their implementation.  The rules, however, will be challenged in court, and it […]

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    • Literature Professor Unveils Brand New ‘Blueprint’-Compliant Syllabus

      June 5, 2013

      As Torch readers know, the Departments of Education and Justice have established a new "blueprint" for sexual harassment policies on college campuses nationwide, eliminating the requirement that sexual harassment be objectively offensive and instead defining it as simply "any unwelcome conduct of a sexual nature," including speech.  Not wanting to be "labeled a sexual harasser by the Department of Education," Georgia Perimeter College professor Rob Jenkins shared with The Chronicle of Higher Education his plans to revise his Intro to Lit syllabus in order to comply with the mandate. Now that "the DOE has apparently decided that the ‘reasonable person’ […]

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    • ‘Los Angeles Times’ to Feds: Respect Campus Speech

      June 5, 2013

      An editorial published in today’s Los Angeles Times calls on the Departments of Justice and Education to respect free speech on campus. The editorial asks the Departments to clarify their "blueprint," issued last month, that requires an expanded definition of sexual harassment and restricts speech protected by the First Amendment. The Times’ editorial board writes: "Sexual harassment on campus is a serious problem, but it can be addressed without abridging free speech." The "blueprint" the editorial refers to is, of course, the May 9 findings letter and resolution agreement authored by the Departments and concluding their investigation into the University […]

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    • Holes in a sexual harassment ‘blueprint’

      June 5, 2013

      Los Angeles Times   When the departments of Justice and Education decided last month to promulgate a new “blueprint” for the handling of allegations of sexual harassment on college campuses, they received very little publicity for their trouble. The blueprint was contained in a May 9 letter sent to University of Montana administrators as part of the resolution of a federal investigation into the university’s handling of complaints that football players had assaulted female students. The letter addressed both sexual assault and sexual harassment. But the language about sexual harassment — which includes “verbal conduct” — immediately alarmed defenders of […]

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    • ‘Tampa Bay Times’: ‘Harassment policy infringes on speech’

      June 4, 2013

      In an editorial published yesterday, the Tampa Bay Times explains how the Departments of Education and Justice’s May 9 "blueprint" for sexual harassment policies is a threat to free speech and how it misdirects the attention of university administrators. By defining sexual harassment as "any unwelcome conduct of a sexual nature," regardless of whether any "verbal conduct" at issue is objectively offensive, the blueprint will "potentially shift campus administrators from presuming offensive speech is constitutionally protected to aggressively punishing it." The editorial notes a recent student newspaper controversy at Central New Mexico Community College as proof that the threat to […]

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    • The OCR Emperor Has No Legal Clothes: OCR Can Only Enforce the ‘Blueprint’ Against University of Montana

      June 4, 2013

      A few weeks ago FIRE sounded the alarm on the Departments of Education and Justice’s "blueprint" for campus speech codes, which defines sexual harassment as "any unwelcome conduct of a sexual nature" (including "verbal conduct") and thus turns virtually every student and faculty member on campus into a harasser.  Since then, we’ve received many variations of the same question: Can the federal government do that? The short answer: Only if universities let them. Strictly speaking, the resolution agreement that spells out everything the University of Montana (UMT) must do to satisfy the Department of Education’s (ED’s) Office for Civil Rights (OCR) is […]

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    • FIRE President Greg Lukianoff at Museum of Sex

      June 4, 2013

      On May 14, FIRE President Greg Lukianoff visited New York’s Museum of Sex to speak with The New York Times’ John Tierney about how the Departments of Education (ED) and Justice’s (DOJ) May 9 "blueprint" letter exacerbates the problems Greg discusses in his book, Unlearning Liberty: Campus Censorship and the End of American Debate. Greg reviewed some of the more egregious campus policies that existed even before the ED and DOJ declared that "sexual harassment" includes speech that is not objectively offensive—including policies prohibiting "expressions deemed inappropriate" or "inappropriately directed laughter." It’s no wonder that according to one survey conducted […]

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    • The Ongoing Battle for Free Speech on Campus: Greg Lukianoff at the Museum of Sex

      June 4, 2013

      Reason Online “The U.S. Department of Education just redefined harassment to make every single man, woman, and child arguably guilty of harassment in one fell swoop,” says Greg Lukianoff, who is the president of the Foundation for Individual Rights in Education (FIRE), which advocates for free speech rights on campus. Lukianoff is referring to a recent letter sent by the U.S. Department of Education and U.S. Department of Justice to the University of Montana that redefined harassment as “any unwelcome sexual speech.” The letter also stated that it’s intended as a “blueprint for colleges and universities throughout the country.” Lukianoff joined the New York Times’ […]

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    • ‘Weekly Standard’ on ‘The Big Chill’ Created by Feds’ Speech Code Mandate

      June 3, 2013

      In a piece for the June 10 edition of The Weekly Standard, Charlotte Allen tackles the federal government’s new speech code "blueprint" by tracking how it diverges from legal precedent and the government’s prior guidance to colleges and universities. Her reporting cites FIRE President Greg Lukianoff, who says that the blueprint letter "widens the universe of things to be considered" when determining what constitutes sexual harassment on campus. She also quotes UCLA law professor and popular legal blogger Eugene Volokh, who believes that the letter creates "a very dangerous situation." To read Allen’s article and find out what else Greg […]

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    • DOE Wishes Weasel Words Will Work Wonders

      June 3, 2013

      by Jay Schalin National Review Online   In response to the uproar caused by free-speech advocates such as FIRE’s Robert Shibley, Greg Lukianoff, and Harvey Silverglate over an amazingly expansive definition of sexual harassment in a ruling issued May 9 concerning events at the University of Montana, the Department of Education’s Office of Civil Rights has just issued another statement best described as “damage control” or even “weasel words.” FIRE quickly issued a comeback, including some choice words from Lukianoff: “The Office for Civil Rights’ weak attempt to walk back its disastrous May 9 letter is too little, too late,” said FIRE President Greg Lukianoff. “OCR’s belated lip service […]

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    • ILLEGAL FLIRTING? FEDS REVISIT ‘SEX HARASSMENT’

      June 1, 2013

      by Bob Unruh WND Education   Federal officials are trying to explain why they issued rules that require colleges and universities to consider any unwanted conduct of a sexual nature – even date requests – actionable sexual harassment. WND reported that the May 9 guidance from the U.S. Department of Education was understood to mean that every flirtation on a college campus in America and every request to go out on a date could be considered sexual harassment. In a new letter signed only by the Office of Civil Rights in the federal agency, officials insisted the Department of Education’s guidance […]

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    • The Big Chill

      June 1, 2013

      by Charlotte Allen The Weekly Standard   It’s a well-known fact that on most college campuses, supposedly havens of academic freedom, you really have to watch what you say. The vast majority of America’s universities, both public and private, have speech codes that regulate the utterances of their students, professors, and administrators. Some of those codes at private universities spring from the religious or ethical missions of the institution, and it’s understandable that those campuses might want to forbid, say, swearing or pornography or insulting the institution’s faith tradition. But most campuses are avowedly secular, and what the speech codes […]

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    • University of Montana Admin Promises New Policies Will Respect First Amendment

      May 31, 2013

      Concerned citizens have no reason to feel reassured by the Department of Education’s Office for Civil Rights’ (OCR’s) new attempt to argue that its May 9 federal “blueprint” is consistent with past OCR guidance and the First Amendment. Earlier today, FIRE’s Will Creeley explained how OCR’s conflicting statements put university administrators between a rock and a hard place—schools must enact policies that violate students’ First Amendment rights, or put themselves at risk of losing federal funding. But Peggy Kuhr, Vice President for Integrated Communications at the University of Montana, has expressed confidence that UMT can revise its policies in line […]

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    • Feds backpedal on definition of sexual harassment for campuses

      May 31, 2013

      by Robby Soave The Daily Caller   The federal government reversed course this week after debuting its new definition of sexual harassment, creating confusion about what kinds of sexual behavior should be prevented on college campuses. Earlier this month, the Departments of Justice and Education issued a memo to the University of Montana advising the university to alter its sexual harassment reporting and response policies. Administrators were told to consider “any unwelcome sexual conduct” as evidence of sexual harassment, even if the conduct is not severe, pervasive or objectively offensive. Some free speech advocates, worried that the new memo would abridge the […]

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    • Five Questions for the Office for Civil Rights

      May 31, 2013

      As detailed in yesterday’s press release, the Department of Education’s Office for Civil Rights has deigned to respond to the national criticism sparked by its May 9 “blueprint” for Title IX compliance. We’ve issued a statement pointing out that OCR’s attempt to walk back the threat to free expression presented by the blueprint doesn’t hold up under scrutiny, but I wanted to take a closer look at five serious questions raised by OCR’s statement. 1. How is the blueprint’s definition of “sexual harassment” consistent with First Amendment precedents? OCR’s statement claims that the blueprint is “entirely consistent with the First Amendment.” My question: How, exactly? […]

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    • Samantha Harris on Montana’s News Talk KGVO at 11 a.m.!

      May 31, 2013

      In just a few minutes (11 a.m. EDT), FIRE’s Director of Speech Code Research Samantha Harris will be joining host Jon King on News Talk KGVO in Montana to discuss the Department of Education’s Office for Civil Rights’ response to the avalanche of criticism it has received since issuing its federal speech code "blueprint."   FIRE fans can tune in on their computers at http://newstalkkgvo.com. Be sure to listen live at 11, EDT!

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    • DOE and DOJ Under FIRE

      May 30, 2013

      by Mary Lou Byrd The Washington Free Beacon   The Department of Education’s Office for Civil Rights (OCR) released a letter yesterday in response to mounting criticism over new sexual harassment guidelines that critics claim raise more questions than it answers. After two weeks of continued pressure from the nonpartisan Foundation for Individual Rights in Education (FIRE), coverage in the media, letters from students, faculty and administrators sent to the OCR regarding its new speech codes, the OCR responded with another letter. As previously reported, FIRE claimed the new guidelines would make nearly every student a sexual harasser. The new mandate would […]

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    • Complaints Over Free Speech Loss at University of Montana Receive Response From Office for Civil Rights

      May 30, 2013

      by Jon King KLYQ Hamilton   The result of a year long investigation by the Department of Justice and the Department of Education into sexual assault response at the University of Montana (UM) ended with an agreement that some say threatens the freedom of speech of UM students and faculty. The Foundation for Individual Rights in Education (FIRE), has been warning that the UM agreement is designed to be a “blueprint” that will be used at universities across the nation. Now, FIRE has obtained a response to these complaints from the Department of Education’s Office for Civil Rights (printed in full below). You can […]

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    • Obama administration’s campus censorship finally covered in media

      May 30, 2013

      by Hans Bader Examiner.com   Earlier, I wrote about a recent letter from the Justice and Education Departments demanding that the University of Montana define as a reportable “sexual harassment” offense “any” speech on sexual topics that is “unwelcome” to any listener, even if most listeners do not find it “unwelcome,” and it would not offend the “reasonable person.” This pretty obviously violates the First Amendment, as I explain here in the Chronicle of Higher Education. The government calls this letter a “blueprint” for the nation’s colleges to use. But if they follow this “blueprint,” they will open themselves up to First Amendment lawsuits, as syndicated columnist George Willnotes. Will quotes […]

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    • Facing National Criticism, Feds Attempt to Defend Controversial Campus ‘Blueprint’

      May 30, 2013

      WASHINGTON, May 30, 2013—Following two weeks of blistering criticism from the Foundation for Individual Rights in Education (FIRE) and commentators nationwide, the United States Department of Education’s Office for Civil Rights (OCR) is attempting to defend a controversial speech code “blueprint” that requires colleges and universities to expand their definition of sexual harassment to include speech protected by the First Amendment. Yesterday, OCR sent a statement to concerned students, faculty, alumni, administrators, and citizens who have written the agency to express outrage over the threat to free speech presented by the May 9 findings letter and resolution agreement authored by […]

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    • Education Department Attack on Free Speech and Due Process Criticized in Washington Post, Chronicle, and Other Papers

      May 29, 2013

      by Hans Bader OpenMarket.org   Earlier, I wrote about a recent letter from the Education and Justice Departments demanding that the University of Montana define as a reportable “sexual harassment” offense “any” speech on sexual topics that is “unwelcome” to any listener, even if most listeners do not find it “unwelcome,” and it would not offend the “reasonable person.” This pretty obviously violatesthe First Amendment, as I explain here in the Chronicle of Higher Education at this link. The government calls this letter a “blueprint” for the nation’s colleges and universities to use. If the colleges follow this “blueprint,” they will open themselves up to First […]

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    • FIRE Answers Frequently Asked Questions about New Federal ‘Blueprint’

      May 29, 2013

      Between the findings letter and the resolution agreement from the Departments of Education and Justice to the University of Montana, almost 50 pages of text comprise the new federal "blueprint" for campus sexual misconduct policies. So FIRE completely understands if you have some questions about what all this means and what’s so bad about the "blueprint."  That’s why we’ve answered some of the most frequently asked questions about the ED and DOJ’s letter. FIRE’s FAQ covers the context of the letter, the threat to free expression presented by the blueprint, and additional information for lawyers, college administrators, and professors. Of […]

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    • Barack Obama as Dean Wormer

      May 29, 2013

      by Jon Gabriel Freedom Works   Whenever a high school grad is foolish enough to ask me for college advice, I share one simple tip: Watch Animal House. Sure, it’s important to study and read and learn and intern and blah, blah, blah. But don’t get so pre-occupied with academic achievement that you miss out on the unique opportunity for fun, mayhem and terrible decision-making that college provides. Work hard during the week, but have a blast on the weekend. Unfortunately, the White House doesn’t share my views about Animal House. In fact, according to the Obama Administration’s new campus rules, showing […]

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    • More Examples of Actionable Sexual Harassment Under the ‘Blueprint’

      May 28, 2013

      Over at Minding the Campus, Nathan Harden compiles an interesting list of instances in which universities have used student fees to fund what he argues are frivolous campus events. In his article, Harden argues that such uses of student fee resources are excessive and wasteful. Harden is entitled to his own opinion, of course, as are the students who found these events worthy of funding. But from a FIRE perspective, as one reads about the campus events discussed in the piece, one cannot help but think about how many of them—despite being expressive activity protected by the First Amendment—could constitute […]

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    • Obama administration proclaims right not to be offended on campus

      May 28, 2013

      by Les Sillars World Magazine   Colleges and universities across the country could soon be forced to adopt a definition of “sexual harassment” so broad critics say it leaves almost every student vulnerable to punishment and violates their First Amendment rights. The federal departments of Education and Justice issued an agreement with the University of Montana on May 9 following a year-long investigation into that school’s mishandling of several sexual assault cases. The investigation found the university’s policies addressing sexual assault failed to comply with Title IV of the 1964 Civil Rights Act and Title IX of the 1972 Education […]

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    • Cathy Young: Federal ‘Blueprint’ Jeopardizes Free Speech and Due Process

      May 28, 2013

      Newsday columnist Cathy Young wrote yesterday to explain why the Education and Justice Departments’ May 9 federal "blueprint" for campus sexual harassment policies puts students’ free speech and due process rights at risk. In her column, Young reminds her readers, "This is not just friendly advice from Uncle Sam: Schools that don’t comply may lose federal funding."  First, she notes the blueprint’s extraordinarily broad, subjective definition of "sexual harassment":  "Unwelcome conduct of a sexual nature," physical or verbal, is deemed actionable regardless of if it is severe or pervasive enough to limit educational or work opportunities (the legal standard for […]

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    • More government overreach — on campus sexual harassment

      May 27, 2013

      by Cathy Young Newsday   A joint letter from the U.S. Department of Justice and the Department of Education to the University of Montana earlier this month signals a stepped-up federal initiative to combat sexual assault and harassment on college campuses. While the problems are undeniably real, the government’s proposed solutions may jeopardize such basic values as free speech and protections for the accused. The letter, which follows a review of that university’s response to sexual harassment and assault, explicitly states that its recommendations are a “blueprint for colleges and universities throughout the country.” This is not just friendly advice from Uncle Sam: Schools that […]

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    • David Moshman: ‘Sexual Harassment Is Wrong Because It Is Harassment, Not Because It Is Sexual’

      May 24, 2013

      In light of the Departments of Education and Justice’s new federal "blueprint" for campus sexual harassment policies, David Moshman, a professor of educational psychology at the University of Nebraska-Lincoln, writes for The Huffington Post today to share a story that would be funny if it weren’t true.  At the University of Nebraska-Lincoln (UNL) a psychology graduate student named Toni Blake studied and taught human sexuality. One day in 1993 Blake brought a banana to a class session on contraception and used it to illustrate the application of a condom. Warning about the danger of impregnation prior to ejaculation, she joked that […]

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    • Sexual Harassment and Academic Freedom

      May 24, 2013

      by David Moshman The Huffington Post   The University of Montana has received a 31-page letter from the U.S. Departments of Justice and Education. It’s not a love letter. And it’s not just for them. The letter puts higher education on notice that mere speech can be sexual harassment if any listener is offended by its sexual content. The Foundation for Individual Rights in Education (FIRE) and feminist civil libertarian Wendy Kaminer, among others, have condemned the letter as an extraordinary threat to freedom of speech about matters of sexuality at all colleges and universities. It is also an extraordinary threat to academic freedom. Let […]

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    • ‘Alice in Wonderland’ coercion

      May 24, 2013

      by George Will The Washington Post   Barack Obama, vowing to elevate Washington to the level of his fastidiousness, came from Chicago, where the political machine inoculates itself from scandals by the proliferation of them: Many scandals mean merely cursory scrutiny of most. Now, notice the scant attention being given to an assault on civil liberties by the misconceived Education Department’s misnamed Office for Civil Rights (OCR). Responding to what it considers the University of Montana’s defective handling of complaints about sexual assaults, OCR, in conjunction with the Justice Department, sent the university a letter intended as a “blueprint” for institutions nationwide when handling sexual harassment, […]

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    • How the Federal Blueprint Breaks New Ground

      May 24, 2013

      The controversial University of Montana findings letter and resolution agreement (together, the “blueprint”) issued by the Departments of Justice and Education two weeks ago have drawn criticism from commentators nationwide. The heat has come from all corners, with UCLA School of Law professor and First Amendment expert Eugene Volokh, former Department of Education attorney Hans Bader, editorialboards, columnists, bloggers, civil libertarians, and many more weighing in on the threat to free speech on campus. Given the hailstorm of criticism that has followed the feds’ high-profile roll-out for the University of Montana agreement, I’ve been struck by the lack of public support for the shockingly broad definition of “sexual harassment” that the Department of Education’s Office for Civil […]

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    • The National Speech Code Power Grab

      May 24, 2013

      by Jay Schalin National Review Online   One of the problems of having a big, powerful bureaucracy is the potential for “legislation by regulation.” Now, the federal Departments of Education and Justice went one better than that, according to the senior VP of the Foundation for Individual Rights in Education, Robert Shibley. In a Pope Center article, he writes that the federales “effectively repealed the First Amendment for college students and faculty members” in a ruling concerning a controversy over sexual assault at the University of Montana. The ruling appears to be a thinly veiled power grab, using a remarkably broad […]

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    • Hans Bader in ‘Chronicle’: New Blueprint ‘Casts Dark Cloud’

      May 23, 2013

      In an article for The Chronicle of Higher Education published today, attorney Hans Bader elaborates on some of the repercussions of the Departments of Education and Justice’s new federal "blueprint" for campus sexual misconduct policies, which defined sexual harassment as "any unwelcome conduct of a sexual nature."Bader, who was formerly with the Department of Education’s Office for Civil Rights, cites several cases in which courts have held that charges of sexual harassment on campuses must include an element of objective offensiveness. Without that element, Bader explains, sex education classes and even attempts at dating are risky. He paraphrases an example […]

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    • No, the New ‘Blueprint’ Does Not Require an Objective Standard

      May 23, 2013

      Since the Departments of Education and Justice released their new "blueprint" for campus sexual misconduct policies on May 9, FIRE and other free speech advocates have done their best to explain exactly what the ED and DOJ have done and why it is so dangerous for free speech and due process on campus. With scores of pages of directions from these agencies, much of it conflicting with past guidance from the Department of Education’s Office for Civil Rights, it is understandable that there are misunderstandings about this blueprint. That said, writers reporting on the matter should be exceedingly careful not […]

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    • What First Amendment?

      May 23, 2013

      by Robert Shibley The John William Pope Center   It’s official: the federal Departments of Justice and Education have joined together to put an end to free speech on America’s campuses. This is not an exaggeration—those government agencies are trying to grab our most basic freedom under the cover of preventing sexual harassment. Students across the country will be facing a grim situation for free speech in the fall thanks to the government’s settlement with the University of Montana over the university’s awful mishandling of sexual assaults on its campus. Unfortunately, in the process of addressing Montana’s failures with regard […]

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    • No, New Sexual Harassment Guidelines Are Not a Positive Step

      May 23, 2013

      Last week in an article for USA TODAY titled "New sexual harassment guidelines a positive step," Melanie Kruvelis followed in the footsteps of the Departments of Education and Justice by failing to distinguish between harassment—however it is defined—and physical assault. She observed that the federal "blueprint’s" (PDF) newly mandated definition of sexual harassment—that is, "any unwelcome [verbal or physical] conduct of a sexual nature"—"hasn’t been sitting well with free-speech advocates." Kruvelis even acknowledged the possibility of innocuous speech like requests for a date falling under this new definition. "But what the First Amendment champions are missing is the silencing of sexually […]

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    • Group Argues That Freedom of Speech is Under Assault by University of Montana Sexual Assault Agreement

      May 21, 2013

      by Jon King News Talk KGVO   The recent agreement between the University of Montana and the Department of Justice on the issue of sexual assault investigations has come under fire by a free speech advocacy group, that argues that the agreement puts student rights in jeopardy. Foundation for Individual Rights in Education President Greg Lukianoff describes one of the dangers of the agreement. “In the course of giving its opinion on what happened at the University of Montana, the Department of Education and [the] Department of Justice took an entirely unnecessary detour and redefined ‘harassment’ in incredibly broad, flatly unconstitutional, language,” Lukianoff said. Not […]

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    • Glenn Garvin Surveys the Casualties of War on Shakespeare

      May 21, 2013

      The Miami Herald‘s Glenn Garvin wrote yesterday to emphasize what’s at stake following the Departments of Education and Justice’s May 9 federal "blueprint" letter defining sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct."  Garvin points out that under this broad definition, William Shakespeare may be persona non grata on campus. He explains: Who gets to define "unwelcome"? The listener and the listener alone — no matter how high-strung, neurotic or just plain pinheaded that person is. I can understand why you might suspect I’m extrapolating or exaggerating here, but really, the feds’ letter is quite explicit: the […]

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    • Department of Education on Federal ‘Blueprint’ Letter: Silence

      May 20, 2013

      Since the Departments of Education and Justice sent out their letter outlining a new, censorship-laden "blueprint" for campus sexual harassment policies on May 9, free speech advocates, commentators, and news outlets have strongly and swiftly voiced their objections and concerns and explained why the letter’s mandates are unconstitutional. But not everyone is jumping into the debate—for instance, the Department of Education itself. In an article covering responses to the letter, the Washington Free Beacon reported its experience with the Department of Education last week: The Washington Free Beacon asked the DOE for comment. They responded, asking for guidance as to […]

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    • Glenn Garvin: Welcome to ‘unwelcome’ speech on campus

      May 20, 2013

      by Glenn Garvin The Miami Herald   I know it was hard to hear anything last week over the cacophony of the White House roof falling over Benghazi, the IRS and spying on reporters. But still, I was surprised there wasn’t more fuss about the Obama administration’s war on Shakespeare. That’s right: Obama’s Justice and Education departments effectively banned America’s universities from teaching the works of the playwright generally considered the greatest writer in the history of the English language. In an order to the University of Montana that they labeled “a blueprint for colleges and universities throughout the country,” […]

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    • Silencing Free Speech on College Campuses

      May 20, 2013

      by Alan Caruba Canada Free Press   “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the people peacefully to assemble, and to petition the government for a redress of grievances.” The enemies of these freedoms, as expressed in the First Amendment, have always been at work to narrow and eliminate them. A recent, egregious example of this was the subject of an article by Hans Bader, a former attorney with the U.S. Department of Education’s Office for Civil Rights. In 2003 he joined the […]

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    • Feds to students: You can’t say that

      May 19, 2013

      by Joanne Jacobs JoanneJacobs.com   The Obama administration’s move to “dramatically undermine students’ and faculty rights at colleges across the country” is another government scandal, writes Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE) in the Wall Street Journal. The Education Department and Justice Department rewrote the federal government’s rules about sexual harassment and free speech on campus in a May 9 letter to the University of Montana. To retain federal funding, colleges and universities must punish “unwelcome conduct of a sexual nature,” including “verbal conduct,” otherwise known as speech. Till now, sexual harassment had to be “objectively offensive” to a “reasonable person.” […]

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    • Feds rooting out ‘unwelcome speech’ on campus: But what is that?

      May 18, 2013

      by Patrik Jonsson The Christian Science Monitor   The failure of the University of Montana to respond adequately to rape and sexual assault allegations against popular football players has led to a broadening of how the federal government defines sexual harassment, causing free speech advocates to worry that the new policy will be used to punish “unwelcome” flirting and chill the right to speak freely on campus. A detailed “resolution agreement” with the University of Montana, dated May 9, outlines what the US Department of Education and Justice Departmentdescribe as a new “blueprint” for how colleges should view sex discrimination, assault, and harassment on campuses. […]

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    • Mona Charen on the Feds’ ‘Blueprint’ for College Censorship

      May 17, 2013

      FIRE President Greg Lukianoff’s op-ed in today’s Wall Street Journal takes on the feds’ unconstitutional “blueprint” for speech codes that makes nearly every student in America a sexual harasser, but Greg and FIRE aren’t the only ones sounding the alarm. Nationally syndicated columnist Mona Charen’s recent column ties this latest outrage to the 2011 “Dear Colleague” letter from the Department of Education that slashed due process protections for students accused of sexual misconduct including—guess what!—sexual harassment.

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    • UM, city hire expert to evaluate changes to sexual assault response

      May 17, 2013

      by Martin Kidston Independent Record   MISSOULA — With other colleges watching, the University of Montana will contract with a national expert on police response to sex crimes to help evaluate changes being made to the school’s Office of Public Safety. Thomas R. Tremblay, the former chief of police for the city of Burlington, Vt., will measure the progress made by UM’s campus police department as it works to improve its response to sexual assaults on campus. The DOJ recommended the move last week and the university agreed, as did the Missoula Police Department. The city and university hope to share […]

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    • FEDERAL GOVERNMENT MANDATES UNCONSTITUTIONAL SPEECH CODES AT COLLEGES AND UNIVERSITIES NATIONWIDE

      May 17, 2013

      UPDATE 5/17/13: FIRE President Greg Lukianoff, in The Wall Street Journal‘s lead op-ed space, discusses how the government has mandated a breathtakingly broad definition of sexual harassment that makes nearly every student in the United States a harasser, completely ignoring the First Amendment.   WASHINGTON, May 10, 2013—In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.  “I am appalled by this attack on free speech on campus from our […]

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    • Reason TV covers new government mandated speech codes on campus

      May 16, 2013

      by Aleister G College Insurrection   Legal Insurrection covered the new campus speech codes story last week and now other conservative and libertarian outlets are starting to report the outrageous story as well. In the video below, Matt Welch of Reason interviews Greg Lukianoff of The FIRE. Feds Push Insane New Speech Codes! “It is so broad that it turns every single student and every single faculty member on campus, at least arguably, into harassers,” warns Greg Lukianoff, president of theFoundation for Individual Rights in Education (FIRE). Hat tip to Hot Air. View this article at College Insurrection

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    • DOJ and Department of Education Mandate Orwellian Speech Restrictions on College Campuses

      May 16, 2013

      by Andrew Kloster The Foundry   Last week, the United States Department of Justice (DOJ) Civil Rights Division and the Department of Education (ED) Office for Civil Rights issued a joint letter memori­­­alizing an “agreement” with the University of Montana relating to Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964. Any university receiving federal funds must comply with Title IX of the Education Amendments of 1972 and Title IV of the Higher Education Act of 1964 or risk losing those funds. These acts prohibit discrimination and ensure that students all […]

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    • The De-Eroticized University

      May 16, 2013

      by Ken Masugi Library of Law and Liberty   Most readers of this blog will already know the speech codes—viz. sex codes—that the Department of Education seeks to impose on universities, under the guise of preventing sexual harassment. Eugene Volokh has a lucid summary and the Office of Civil Rights of the Department of Education a tedious tongue-lashing about what constitutes sexual harassment.  The acts that keep Diversity Offices at full employment can range from telling a dirty joke to reading Anna Karenina. Similar directives go back into previous administrations, so, once again, the battle is not about personality (even a powerful one such […]

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    • By the way, the feds also pushed super-broad speech codes for campuses this week

      May 15, 2013

      by Mary Katherine Ham Hot Air Bad news, kids, you could already be a harasser, according to the new definition. Perhaps nowhere in the nation is speech more potentially dangerous than on a college campus. Reason TV offers a great explanation: Mona Charen gives some history on this issue, and the related loss of basic due process on campus: In a 2011 letter to colleges, the Education Department’s Office of Civil Rights (OCR) mandated that in cases of suspected sexual harassment or sexual assault, universities were to reduce the standard of proof to a more-likely-than-not standard. The new standard requires that fact finders believe […]

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    • Creeley in ‘Huffington Post’: Fed’s New Campus Mandate Silences Sarah Silverman, Salt-n-Pepa, Ciara

      May 15, 2013

      Joining the voices that have spoken out in recent days against the new federal mandate from the Departments of Justice and Education is FIRE’s Will Creeley, who takes to The Huffington Post for an insightful column.   Will offers numerous examples of popular, innocuous, and constitutionally protected speech that will be subject to censorship and punishment under the terms of the DOJ/DOE letter: “A Sarah Silverman routine, a classroom discussion of safe-sex practices, a poetry reading, a performance of The Vagina Monologues, a critical analysis of pornographic tropes, a Planned Parenthood presentation — all actionable as sexual harassment, if the […]

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    • New OCR Letter Completely Ignores Earlier OCR Guidance on First Amendment

      May 15, 2013

      If you are a Torch reader, you are by now probably familiar with the fact that last week, the U.S. Departments of Education and Justice issued a letter to the University of Montana—a letter explicitly intended to serve as “a blueprint for colleges and universities throughout the country”—requiring that universities adopt a staggeringly broad definition of “sexual harassment.”  According to that letter, universities must prohibit, as sexual harassment, “any unwelcome sexual conduct”—including “verbal conduct”—that is subjectively offensive to the listener. In other words, to be in compliance with Title IX, universities, including public universities legally bound by the First Amendment, […]

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    • News of DOJ/DOE Mandate Spreads

      May 14, 2013

      Pressure continues to build in reaction to last week’s mandate from the Departments of Justice and Education regarding sexual harassment on campus.  Following up on Robert Shibley’s article for The Daily Caller, FIRE’s co-founder Harvey Silverglate has co-authored a piece with Juliana DeVries for Minding the Campus, which argues that the new mandate guarantees that “[n]either justice nor education will be well served.” In fact, Silverglate and DeVries explain that the new guidance will firmly “establish a culture of censorship and self-censorship on our nation’s campuses.” Last night, FIRE President Greg Lukianoff aired similar concerns on HuffPost Live, discussing how […]

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    • More Reasons Why the New DOE/DOJ Letter Jeopardizes Higher Education

      May 14, 2013

      A newer edition of Anne Frank’s diary has caused some stir in Northville, Michigan. The new, unedited edition of the diary contains candid descriptions of Frank’s anatomy and has upset a mother in the district, who wants the school to go back to the previous version because reading the book made her daughter feel uncomfortable. Regular Torch readers are probably wondering why I’m talking about a middle school issue, something clearly outside of FIRE’s higher education purview. The answer is simple and disturbing. Under the new “blueprint” provided by the Departments of Justice and Education last week, if a college […]

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    • Government Opens the Floodgates for College Sexual Harassment Suits

      May 14, 2013

      by Kaylin Bugos The American Spectator   In yet another example of the federal government going too far, the Departments of Justice and Education have created a policy that threatens free speech right on college campuses. In a letter to the University of Montana, the departments describe a policy that it explicitly states will be “a blueprint for colleges and universities throughout the country.” It defines sexual harassment as “unwelcome conduct of a sexual nature and can include unwelcome sexual  advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” Moreover, the letter says that the […]

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    • Federal ‘harassment’ agreement with University of Montana exposes journalists to risk of discipline for writing about sex

      May 14, 2013

      by Frank LoMonte Student Press Law Center   New federal guidance about what constitutes sexually harassing speech on college campuses appear to expand the definition of “harassment” to include harmless references to sexual topics, even those in student media. Two federal agencies, the Department of Justice and the Department of Education, announced a settlement last week in their investigation of the University of Montana-Missoula, which was accused of responding lackadaisically to campus sexual assaults. The investigation expanded beyond sexual violence into a wider-ranging inquiry into UM’s policies on sexual harassment. As part of resolving the Montana case, the agencies came […]

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    • Fake Bureaucrat Gives Real Answers About Mandate from Departments of Justice and Education

      May 14, 2013

      In The Daily Caller yesterday, Robert Shibley, FIRE’s senior vice president, answered some of your most frequently asked questions about the shocking new mandate from the Departments of Justice and Education, writing as A. Fake Bureaucrat, a strong supporter of the federal mandate.  Mr. Bureaucrat is psyched about finally cracking down on sexual harassers like the Duke Women’s Center, professors who assign Anne Frank’s diary, and nerds who want to go out on a date with you. If you’re dubious, Mr. Bureaucrat wants you to know: You’re missing the best part! The new rules say your feelings about the date request don’t have […]

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    • The ignored DOJ scandal: anti-free speech codes on campuses

      May 14, 2013

      by William Jacobson Legal Insurrection   Amidst all the scandals exposed these past two weeks, one is being ignored by the mainstream media and most of the conservative media as well — the actions of the Department of Justice and Department of Education to force colleges and universities to impose anti-free speech codes. We wrote about this on Friday, The FIRE: “The government has mandated speech codes on all campuses”: The FIRE is not an organization prone to hyperbole. So when I received this email late this afternoon from FIRE Senior Vice President Robert Shibley, it got my attention: THIS. IS. OUTRAGEOUS. The […]

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    • The Administration Says Universities Must Implement Broad Speech Codes

      May 13, 2013

      by Eugene Volokh The Volokh Conspiracy   The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance, saying “unwelcome” “sexual or dirty jokes” spreading “unwelcome” “sexual rumors” (without any limitation to false rumors) engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature” engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials” making “unwelcome” sexual invitations. This is […]

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    • Tolerate ‘Any’ Unwelcome Campus Sex Talk, Lose Federal Funds

      May 13, 2013

      by Walter Olson Cato at Liberty   My colleague Andrew Coulson has already briefly noted this story, but its constitutional and policy implications — which go well beyond the higher education context — merit a more detailed look. For more than two years civil rights enforcers at the federal Department of Education and Department of Justice have been readying a crackdown on colleges and universities that they view as excessively lax, lenient, or observant of due process toward the accused in charges of unwelcome sexual conduct. Now, in a letter and resolution agreement sent to administrators at the University of Montana, the enforcers finally seem to have tipped their […]

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    • Another Washington-Inspired Assault on Free Speech

      May 13, 2013

      by John Leo Minding the Campus The Obama administration is currently embroiled in two political scandals, and a third, understandably overshadowed by Benghazi and the IRS, is brewing on our campuses. The Civil Rights offices of both the Education Department and the Justice Department have issued a flabbergasting and clearly unconstitutional assault on free speech, ruling that colleges must eliminate and punish “verbal action” (better known as speech) touching on sexual matters. Rumors (true or not), “unwelcome” requests for dates, off-color jokes and virtually all sexual discussion will now be (selectively) punishable as sexual harassment under orders from the Education Department. […]

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    • Obama Administration Orders Colleges to Implement Unconstitutional Speech Codes

      May 13, 2013

      by Joe Carter Acton Institute   Not content to trample only the religious freedom side of the First Amendment, the federal government has decided to ignore the free speech side too. As the Foundation for Individual Rights in Education (FIRE) reports, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent. In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the […]

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    • Watchdog group: Feds to force all U.S. universities to adopt unconstitutional speech codes

      May 13, 2013

      by Oliver Darcy Campus Reform   The Department of Justice (DOJ) and Department of Education (DOE) are set to force all U.S. colleges and universities to adopt a restrictive and illegal speech code, in an attempt to curb sexual harassment on campuses, a well-respected academic watchdog group is alleging. The charges, made by The Foundation for Individual Rights in Education (FIRE) in a press release, are based on a letter the DOJ and DOE sent jointly to the University of Montana on Thursday, instructing administrators to adopt a broad definition of sexual harassment. That definition, according to the letter, must include […]

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    • Dating imperiled by government speech mandate

      May 13, 2013

      by Donal Brown First Amendment Coalition   The Departments of Justice and Education are ordering every U.S. college and university to enact speech codes that include restrictions on expression on sexual topics that offend any person; sexually themed jokes that are considered offensive; and requests for dates or flirtation not welcomed by the recipient.”…the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or […]

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    • The Feds Mandate Abolition of Free Speech on Campus

      May 13, 2013

      by Harvey Silverglate and Juliana DeVries Minding the Campus   In a breathtakingly bold move, the civil rights offices of both the Department of Education and the Department of Justice have mandated the effective abolition of free speech on college campuses, as well as the almost certain conviction of large numbers of students, many of whom will be innocent, of “harassment.” Neither justice nor education will be well served. The ED/DOJ’s disturbing and unconstitutional May 9th letter, mandating changes in sexual assault and harassment procedures and standards, arose out of a joint ED/DOJ investigation and evaluation at the University of Montana, Missoula. […]

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    • U.S. rule makes every student a sex harasser

      May 11, 2013

      by Joanne Jacobs JoanneJacobs.com   John asks Mary for a date. She says no. The request was unwelcome, so he’s a sexual harasser. Professor Smith discusses the risk of HIV transmission through anal sex, making one of his 500 students uncomfortable. He’s a sexual harasser. Just about everyone on campus is guilty of sexual harassment under rules set out May 9 by the U.S. Departments of Justice and Education, charges the Foundation for Individual Rights in Education (FIRE). The University of Montana’s mishandling of sexual assault charges – assault, not jokes — triggered a Letter of Findings and Resolution Agreement intended to be “a blueprint for colleges and universities throughout […]

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    • I Ask Anurima Bhargava for a Date

      May 10, 2013

      by Quin Hillyer The American Spectator   Hey, Anurima Barghava, you look sweet. Wanna go on a date? Or maybe you’d rather charge me with sexual harassment for asking you. I hereby ask you again for a date, because, well, you know, you look sweet. Ms. Barghava is one of the two signatories to an utterly absurd letter to the University of Montana that purports to set a national template for sexual harassment policy on college campuses. As Hans Bader explains for the Competitive Enterprise Institute (drawing heavily on a report from the indispensable FIRE), this idiotic, Orwellian, tyrannical policy by the ever-so-sweet Ms. Barghava could […]

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    • Why FIRE Is Hot under the Collar

      May 10, 2013

      by Andrew Coulson Cato at Liberty   According to the Foundation for Individual Rights in Education (FIRE), “the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment.” Here’s what FIRE is, well, fired up about: The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’ ” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the […]

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    • Former OCR Attorney Details Federal Government’s Shocking Break with Legal Precedent, Common Sense

      May 10, 2013

      If you haven’t read today’s FIRE press release about the Departments of Justice and Education’s shocking new speech code mandate, be sure to read it now. It’s an important one. And when you’re up to speed, check out former Office for Civil Rights (OCR) attorney Hans Bader’s thorough analysis of the myriad ways yesterday’s joint letter and agreement constitutes a sharp break with both well-established legal precedent and even OCR’s prior guidance.  With regard to the federal government’s declaration that colleges and universities must define sexual harassment as “any unwelcome conduct of a sexual nature,” Hans surveys the legal landscape: […]

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    • FEDERAL GOVERNMENT MANDATES UNCONSTITUTIONAL SPEECH CODES AT COLLEGES AND UNIVERSITIES NATIONWIDE

      May 10, 2013

      Here’s today’s press release: WASHINGTON, May 10, 2013—In a shocking affront to the United States Constitution, the U.S. Departments of Justice and Education have joined together to mandate that virtually every college and university in the United States establish unconstitutional speech codes that violate the First Amendment and decades of legal precedent.  “I am appalled by this attack on free speech on campus from our own government,” said Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), which has been leading the fight against unconstitutional speech codes on America’s college campuses since its founding in 1999. “In […]

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    • Departments of Justice, Education Misquote the Supreme Court

      May 10, 2013

      Footnote 8 on page 5 of the May 9, 2013, letter from the Departments of Justice and Education to the University of Montana states: While the Supreme Court in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), requires deliberate indifference by the recipient to “severe and pervasive” harassment of which a recipient had actual knowledge to establish liability for damages under Title IX, shortly after those decisions were issued, OCR clarified in its 2001 Guidance that a recipient’s failure to respond promptly and effectively to severe, persistent, or pervasive harassment of which it knew or should have […]

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    • Federal Title IX Enforcers Effectively Define Dating and Sex Education as “Sexual Harassment”

      May 10, 2013

      by Hans Bader OpenMarket.org   No one would believe you if you made this up, but it’s now actually happened: The Justice Department and the Education Department’s Office for Civil Rights now have effectively defined dating and sex education as “sexual harassment.” The definition is found in a May 9 Title IXLetter of Findings and Resolution Agreement involving the University of Montana. In a radical departure from Title IX jurisprudence, the federal government declares that “any” unwelcome sexual speech or other conduct is “sexual harassment” regardless of whether it is severe, repeated, or pervasive, and regardless of whether it would offend a reasonable […]

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