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 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 2011, the Department of Education took a hatchet to due process protections for students accused of sexual misconduct. Now the Department of Education has enlisted the help of the Department of Justice to mandate campus speech codes so broad that virtually every student will regularly violate them. The DOE and DOJ are ignoring decades of legal decisions, the Constitution, and common sense, and it is time for colleges and the public to push back."
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 country," 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 private.
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 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.
This result directly contradicts previous Department of Education guidance on sexual harassment. In 2003, the Department of Education’s Office for Civil Rights (OCR) stated that harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." Further, the letter made clear that "OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age."
Among the forms of expression now punishable on America’s campuses by order of the federal government are:
- Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of "The Vagina Monologues," a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
- Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
- Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.
There is likely no student on any campus anywhere who is not guilty of at least one of these "offenses." Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.
"The federal government has put colleges and universities in an impossible position with this mandate," said Lukianoff. "With this unwise and unconstitutional decision, the DOJ and DOE have doomed American campuses to years of confusion and expensive lawsuits, while students’ fundamental rights twist in the wind."
"The Departments of Education and Justice are out of control," continued Lukianoff. "Banning everyday speech on campus? Eliminating fundamental due process protections? Ignoring its own previous statements? They even misquoted the Supreme Court. This cannot be allowed to continue. FIRE will use all of its resources to oppose this menace to our constitutional freedoms and to free speech and academic freedom on campus."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.