Free-speech organizations ask feds to clarify vague ‘harassment’ guidelines

July 16, 2013

by Frank LoMonte

Student Press Law Center

 

The Student Press Law Center is part of a coalition of free-expression groups that called today for the U.S. Department of Education to withdraw or clarify confusing new guidelines that, while intended to help colleges recognize sexual harassment, actually may do the opposite.

As we wrote about in May, new guidance to universities emerged out of a settlement between the University of Montana and the federal Departments of Education and Justice, resolving an inquest into whether UM responded adequately when notified of sexual assaults.

The May 9 guidance goes beyond colleges’ response to sexual assaults and applies to all forms of sexual behavior that might make a campus inhospitable for women. The guidance is well-intentioned but clumsily written, in such a way that — First Amendment advocates fear — will send the message to colleges that “sexual harassment” has been redefined to include even harmless newspaper or magazine articles about sex.

The Department of Education has tried to backpedal, but the backpedaling basically amounts to “read the letter the way we intended it, not the way we wrote it.” Which isn’t reassuring, since colleges won’t have a DOE lawyer in the room when they’re deciding whether to confiscate a newspaper’s sex edition on the grounds of “harassment.”

In a July 16 letter, the SPLC joins the Foundation for Individual Rights in Education and 26 other advocacy groups and prominent First Amendment scholars in asking DOE to correct its overly broad definition of sexually harassing speech, which (according to the Montana directive) now includes “any unwelcome conduct of a sexual nature,” including “verbal conduct,” even if that conduct is unwelcome only to a single unreasonably hyper-sensitive listener. If applied as it’s written, that directive risks putting student journalists at the mercy of campus disciplinarians if just one reader complains that a story or cartoon is offensive.

Prudish college administrators already are overly prone to censor art, literature and journalism that frankly depicts sex in a non-exploitative way. The last thing they need is “cover” from the federal government to legitimize their excesses.

View this article at Student Press Law Center.

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