Five Questions for the Office for Civil Rights

By on 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? Not to be snide or snarky, but seriously: How does OCR square its broad definition of sexual harassment with rulings like DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)?

In DeJohn, the United States Court of Appeals for the Third Circuit struck down Temple University’s sexual harassment policy on First Amendment grounds because it didn’t require proof that the allegedly harassing conduct “objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work.” Id. at 318. Well, neither does the definition of sexual harassment that OCR is requiring the University of Montana to adopt. As stated in the findings letter, “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” That’s it—no objective and subjective analysis, no requirement of a hostile environment. In fact, OCR even explicitly rejects a University of Montana policy because it required an objective analysis of the conduct in question.

So if the University of Montana findings letter and resolution agreement are a “blueprint for colleges and universities throughout the country,” how do you think the attorneys in Temple University’s Office of General Counsel feel? Talk about being stuck between a rock and a hard place: Either violate OCR’s blueprint for Title IX, or violate the First Amendment. (For the record, I think university attorneys nationwide should push back against OCR’s latest, but that’s a topic for another blog entry.)

2. Given the serious differences between the response sent out yesterday and the May 9 blueprint, which document actually represents OCR’s interpretation of Title IX? 

OCR’s statement attempts to mop up the mess created by the May 9 blueprint—but in doing so, it contradicts the blueprint in serious ways.

For example, OCR’s statement tries to walk its unconstitutional definition of sexual harassment back, belatedly offering the following explanation:

Consistent with OCR’s previous, well-established guidance, the May 9 letter explains that “sexual harassment” is unwelcome conduct of a sexual nature but that sexual harassment is not prohibited by Title IX unless it creates a “hostile environment” — that is, unless the harassment is sufficiently severe, pervasive, or persistent such that it denies or limits the student’s ability to participate in or benefit from the school’s program.

But as we pointed out in our press release yesterday, the May 9 letter doesn’t offer this explanation at all. In fact, the May 9 letter plainly states that “[s]exual harassment is a form of sex discrimination prohibited by Title IX and Title IV”—and then defines “sexual harassment” as “any unwelcome conduct of a sexual nature,” including speech.

So, OCR, which interpretation is correct? Is “sexual harassment” prohibited by Title IX, like the May 9 blueprint states? Or is only “hostile environment” sexual harassment prohibited by Title IX, like this week’s email contends?

Pretty important detail to have worked out before issuing a “blueprint” for national Title IX compliance, one would think. I’m sure university attorneys and administrators nationwide would agree.

3. If “sexual harassment” that doesn’t create a “hostile environment” isnot prohibited by Title IX, then under what authority may OCR regulate it?

This question is related to the second question, and here’s the problem: Contrary to the blueprint, OCR’s email states that sexual harassment is only prohibited by Title IX when it creates a hostile environment. But if that’s the case, then where does OCR derive the authority to order the University of Montana to adopt a policy prohibiting “sexual harassment” that doesn’t create a hostile environment?

Remember that the blueprint criticizes and rejects a University of Montana policy that prohibited hostile environment harassment:

The confusion about when and to whom to report sexual harassment is attributable in part to inconsistent and inadequate definitions of “sexual harassment” in the University’s policies.  First, the University’s policies conflate the definitions of “sexual harassment” and “hostile environment.”  Sexual harassment is unwelcome conduct of a sexual nature.  When sexual harassment is sufficiently severe or pervasive to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex, it creates a hostile environment.  The University’s Sexual Harassment Policy, however, defines “sexual harassment” as conduct that “is sufficiently severe or pervasive as to disrupt or undermine a person’s ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person’s work or educational performance.”  Sexual Harassment Policy 406.5.1.  While this limited definition is consistent with a hostile educational environment created by sexual harassment, sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.”

So again: If “sexual harassment” that doesn’t create a hostile environment isn’t prohibited by Title IX, how can OCR—the federal agency tasked with enforcing Title IX—order the University of Montana to outlaw it? This question is even more pressing given that OCR’s definition of “sexual harassment” includes speech protected by the First Amendment.

4. How can OCR’s 2001 Guidance and 2003 “Dear Colleague” letter “remain fully in effect” when the blueprint flatly contradicts them? 

Perhaps embarrassed about issuing a 47-page-long “blueprint” that doesn’t once mention the First Amendment or free speech, OCR tries to rectify the oversight by arguing that the guidance documents the agency issued previously—back when student and faculty rights figured into its analyses—are still operational:

[A]s we have said in the past, OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.  (See 2003 First Amendment Dear Colleague letter at p. 1.) This guidance, as well as OCR’s 2001 Revised Sexual Harassment Guidance, which also addressed First Amendment issues, remain fully in effect, and are available on OCR’s web site.

But if it’s true that these documents “remain fully in effect,” why did OCR ignore them when authoring the blueprint? There’s simply no way that the blueprint is compatible with either the 2001 Guidance (as I explain at length here) or the 2003 “Dear Colleague” letter (as my colleague Samantha Harris explains here). OCR can’t make the blueprint consistent with prior guidance just by saying that it is.

Here are a few quick examples of the incongruity:

The blueprint requires sexual harassment to be defined in university policy as “any unwelcome conduct of a sexual nature.” But the 2001 Guidance states that, under Title IX, universities don’t need any specific sexual harassment policy: “Title IX does not require a school to adopt a policy specifically prohibiting sexual harassment or to provide separate grievance procedures for sexual harassment complaints.”Which is right?

The blueprint criticizes the University of Montana, citing “inconsistent and inadequate definitions of ‘sexual harassment’ in the University’s policies” and charging that “the University’s policies conflate the definitions of ‘sexual harassment’ and ‘hostile environment.’” But the 2001 Guidance doesn’t make any functional distinction between “sexual harassment” and “hostile environment” harassment with regard to students. Students don’t typically possess power over others, so they can’t engage in quid pro quo harassment, and no general form of “sexual harassment” is contemplated. The 2001 Guidance reads simply: “Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment.” Which is right? 

The blueprint requires universities to maintain a definition of sexual harassment—”any unwelcome conduct of a sexual nature”—that necessarily includes speech protected by the First Amendment. But the 2003 “Dear Colleague” letter says that “OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”Which is right?

The blueprint rejects a University of Montana sexual harassment policy because it requires allegedly harassing conduct to be evaluated from an objective perspective: “Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive.” But the 2003 “Dear Colleague” letter requires an objective assessment, stating 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.” Which is right? 

OCR’s futile attempt to reconcile its past statements with its new blueprint only worsens the confusion, leaving colleges and universities in an impossible position.

5. When will OCR issue a clarification and retraction to every college and university in the country bound by Title IX? 

This might be the most important question of all. Administrators and general counsels at colleges and universities nationwide will be spending the summer closely reading the “blueprint” and making sure that their policies match OCR’s new interpretation of Title IX. After all, failure to comply could result in a lengthy federal investigation and the possible loss of federal funding. But OCR only emailed its statement to concerned citizens who had written in to express their dismay about the blueprint. While I’d like to think that every college and university administrator nationwide reads FIRE’s website daily, I know that’s not the case, meaning that colleges and universities remain in the dark about the agency’s corrections to the blueprint. So, as we state in our response, a swift and detailed retraction and clarification is required and must be issued to every college and university that receives federal funding.

The bottom line is that instead of providing answers, OCR’s response only raises more questions. We’ll have more on the problems with OCR’s attempt to defend the blueprint here on The Torch soon.

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