FIRE Response to OCR’s May 29, 2013 Statement to Concerned Citizens

By May 30, 2013

The Department of Education’s Office for Civil Rights’ belated attempt to walk back the unequivocal threat to student and faculty expressive rights presented by the University of Montana resolution agreement and letter is flatly unacceptable. Contrary to OCR’s misleading characterization, its self-proclaimed “blueprint for colleges and universities throughout the country” betrays core First Amendment rights by imposing a new mandate on colleges and universities to adopt and enforce a breathtakingly broad definition of sexual harassment.

As FIRE and a growing chorus of commentators have explained in detail, the definition of “sexual harassment” now mandated by OCR and the Department of Justice reaches a staggering amount of speech protected by the First Amendment. This “blueprint” ignores decades of legal precedent striking down overly broad and vague harassment codes and OCR’s own recognition of the abuse of such codes to censor student and faculty expression. OCR’s claim that the blueprint is consistent with prior guidance is plainly false, as FIRE has documented at length. OCR insists that its 2001 Revised Sexual Harassment Guidance and its 2003 “Dear Colleague” letter “remain fully in effect,” but the May 9 letter dramatically contradicts both.

OCR’s blueprint now requires the adoption of a shockingly expansive definition of “sexual harassment” while failing to recognize First Amendment and due process concerns. Indeed, OCR explicitly rejected a University of Montana sexual harassment policy because it required that allegedly harassing conduct be evaluated from an objective, “reasonable person” standard. OCR even suggests that those accused of sexual harassment must in some instances be punished before an investigation has been completed. These requirements are new—and they threaten student and faculty rights.

A federal agency may not require a public institution to prohibit speech protected by the First Amendment, but that is precisely what OCR has done. OCR seems to believe it can deem speech protected by the First Amendment to be “sexual harassment” because doing so encourages reporting. In fact, the resolution agreement goes beyond encouraging reporting. It requires state employees to report protected speech—labeled as “sexual harassment” under OCR’s broad definition—to administrators. The federal government may no more require the reporting of subjectively offensive but constitutionally protected speech as “harassment” than it may require the reporting of “unpatriotic” speech as treason.

OCR’s disregard for freedom of expression is shocking. After issuing a 47-page “blueprint,” its first and only mention of the First Amendment comes in private statements individually issued to a reporter for the Fitchburg, Massachusetts Sentinel & Enterprise and to concerned citizens—and even then, only weeks after being contacted. The confusion and potential for censorship that OCR’s clumsy, ill-conceived “blueprint” is already creating on campuses nationwide requires far more serious corrective action. A swift and detailed retraction and clarification is required and must be issued to every college and university that receives federal funding.

The Department of Education’s Office for Civil Rights apparently believes it may safely ignore the First Amendment. The Foundation for Individual Rights in Education and concerned students, faculty, alumni, legislators, and citizens nationwide will not allow such a result—nor will the Constitution.

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