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

By 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:   

By contrast, the Supreme Court has ruled that to constitute illegal sexual harassment, sexual advances or other verbal or physical conduct must be severe and pervasive, create a hostile environment, and be "objectively offensive" to a "reasonable person." See, e.g., Davis v. Monroe County Board of Education (1999). According to the Supreme Court, isolated instances of trivially offensive sexual speech are not illegal, and are not considered "sexual harassment" in even the broadest possible sense: the conception of harassment that applies under federal law’s anti-retaliation provisions, which allow employees to sue when they are disciplined for reporting what they in good faith believe to be sexual harassment, even if does not rise to the level of sexual harassment in a narrow legal sense. See Clark County School District v. Breeden (2001).

The definition of "sexual harassment" that the federal government demands that the University of Montana adopt is far broader than the sexual harassment policies declared unconstitutionally overbroad by federal appeals courts in DeJohn v. Temple University, Saxe v. State College Area School District, and McCauley v. University of the Virgin Islands, which made clear that there is no "sexual harassment" exception to the First Amendment. 

Those cases should all be very familiar to regular Torch readers—and they should have been familiar to federal government attorneys, as well.  

Of course, the break with precedent isn’t the only maddening part of yesterday’s letter and agreement, which presents itself as a "blueprint" for institutions of higher education nationwide. What’s really galling is the incredibly widespread chilling effect this new mandate will have on student and faculty speech. As we note in our press release, everything from Lolita to Louis CK will now constitute actionable sexual harassment at the University of Montana, if the wrong person happens to be within earshot. It is exceptionally difficult to imagine watching The Aristocrats—or listening to a sex-ed lecture, or debating the virtue of abstinence, or reading aloud Allen Ginsberg’s "Howl," or counter-protesting the Westboro Baptist Church, and so on and so on and so on—without somebody on campus finding such sex-related speech "unwelcome." Good luck holding a "Sex Week" on campus, or protesting in support of or against same-sex marriage, or teaching a class with a critical analysis of pornography, or simply telling a dirty joke! 

As Hans notes, courts have already dealt with such absurdly broad restrictions on "sexual" speech before:  

Banning all sexual speech that is offensive to any listener would effectively ban sex education and sexual humor, making every sex education class "sexual harassment" when it offends a squeamish student. Some students are made uncomfortable by such topics: for example, sexual harassment charges were unsuccessfully brought after sex educator Toni Blake told a joke while demonstrating a condom. Unlike the Education Department, the courts have rejected the idea that such humor inherently constitutes "sexual harassment." See Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995) (students sued over comments in sex education class; court ruled that since sexual speech must be "severe" or "pervasive" and create "hostile environment" to constitute sexual harassment, the lawsuit should be dismissed; it ruled that sexual humor in the sex education lecture about "erection wear" and anal sex was not enough for liability, since a reasonable person would not have viewed the comments as intended to harass); Black v. Zaring Homes, 104 F.3d 822 (6th Cir. 1997) (jokes about "sticky buns" were not bad enough to constitute sexual harassment, despite being unwelcome.).

Simply put, the government’s overreach is staggering. Be sure to read Hans’ in-depth breakdown for more. 

Of course, we’ll have much more on the subject here next week, including ways that you can make your voice heard in support of free speech on campus. As always, stay tuned.

Cases: Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes