Frequently Asked Questions Regarding the Federal “Blueprint” for Sexual Harassment Policies on Campus

By May 28, 2013

FREQUENTLY ASKED QUESTIONS 

FEDERAL “BLUEPRINT”

  1. What is the “blueprint”?
  2. Why was the University of Montana under investigation?
  3. What is Title IX?
  4. Who enforces Title IX?
  5. If the Department of Education enforces Title IX, why is the Department of Justice involved in the University of Montana case?
  6. Why is the Department of Education involved in sexual assault? Isn’t that a job for law enforcement?
  7. What is a resolution agreement?
  8. What does the Resolution Agreement with the University of Montana require?
  9. What is a findings letter?
  10. What is the difference between a resolution agreement and findings letter?
  11. What is a “Dear Colleague” letter?
  12. Is this federal “blueprint” legally binding on other colleges and universities?
  13. How does OCR define sexual harassment in this blueprint?
  14. What’s wrong with OCR’s definition?
  15. What does this definition have to do with the First Amendment? After all, harassment is not protected speech, right?
  16. Has the Supreme Court of the United States provided a definition of sexual harassment in the educational context?
  17. Hasn’t OCR said in the past that compliance with its regulations doesn’t require prohibiting speech protected by the First Amendment?
  18. Does the blueprint differ from past OCR guidance in other ways?
  19. Have courts struck down definitions of sexual harassment similar to OCR’s?
  20. Who decides what speech is “unwelcome”?
  21. Is it an exaggeration to conclude that the new definition includes asking someone out on a date, telling jokes, and discussing politics or morality?
  22. Do other commentators share FIRE’s concerns?
  23. What about due process rights?
  24. How does this blueprint relate to previous OCR guidance?

FAQs for Lawyers    

  1. Under what authority can OCR impose its blueprint?
  2. Isn’t this definition of sexual harassment void under the Administrative Procedure Act (i.e., contrary to law)?
  3. Isn’t OCR just enforcing the same standards for harassment that already exist in the employment context?
  4. The Department of Education has never terminated federal funding for a Title IX violation. What makes FIRE think it would do so now?
  5. Is someone taking this to the courts? How do I help challenge this blueprint?

FAQs for College Administrators

  1. My institution receives millions of dollars in federal funding every year, so we can’t run the risk of not complying with Title IX. Should we change our sexual harassment policies now to avoid trouble down the road?
  2. How must colleges respond to complaints regarding protected speech that now fall under OCR’s definition of “sexual harassment”?

FAQ for Faculty 

  1. My class addresses various sexual or gender-based themes. If one of my students is offended by class readings or discussion, have I committed “sexual harassment”?

How You Can Help 

  1. What action can I take to make sure that this blueprint is not adopted nationwide?

What is the “blueprint”?

On May 9, 2013, the Departments of Justice and Education issued a findings letter announcing a resolution agreement with the University of Montana, ending a joint federal investigation into the university’s policies and practices regarding sexual harassment and assault. The findings letter, which refers to the agreement as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” explains the Departments’ interpretation of applicable legal standards and the terms of the agreement and defines sexual harassment as “any unwelcome conduct of a sexual nature.” FIRE refers to the findings letter and accompanying resolution agreement, taken together, as the “blueprint.”

Why was the University of Montana under investigation? 

During the fall of 2011, the University of Montana (UMT) received two reports of sexual assault. In an effort to comply with Title IX, the university hired former Montana Supreme Court Justice Diane Barz to investigate these allegations. Seven additional allegations of sexual assault between September 2010 and December 2011 were reported during Justice Barz’s investigation. Barz found that the university “has a problem with sexual assault on and off campus and needs to take steps to address it,” and concluded that the university lacked necessary information and safety measures for assault victims.

It’s important to note that the inquiry was prompted by assault cases, which involve physical conduct. Nevertheless, the Departments of Education and Justice proceeded not only to reiterate problematic procedures in sexual assault cases, but also to redefine the boundaries of sexual harassment, which implicates speech.

What is Title IX? 

Title IX of the Education Amendments of 1972 is a federal law prohibiting discrimination on the basis of sex in educational programs that receive federal funding. Because almost all colleges and universities receive funds through student loan programs or for research grants, Title IX is applicable to virtually every college and university nationwide. Sexual harassment is considered a form of sex discrimination prohibited by Title IX.

Who enforces Title IX? 

The Department of Education’s Office for Civil Rights (OCR) enforces Title IX and other federal anti-discrimination laws. It seeks to ensure compliance with these laws by all “recipient institutions”—that is, educational programs that receive federal funding, including colleges and universities. OCR’s jurisdiction encompasses all educational institutions from primary through graduate school. OCR can initiate a compliance action—i.e., an investigation—against a school if it believes that school is violating civil rights laws. Individuals may also file complaints against an institution with OCR.

If the Department of Education enforces Title IX, why is the Department of Justice involved in the University of Montana case?

There is more than one statute involved in the University of Montana case. The Department of Justice’s Civil Rights Division, Educational Opportunities Section enforces Title IV of the Civil Rights Act of 1964, a federal law prohibiting discrimination against students at public educational institutions on the basis of sex, race, color, religion, or national origin. In addition to enforcing Title IV, the Department of Justice is also authorized to review institutional compliance with Title IX. In this case, the Department of Justice’s Educational Opportunities Section began a formal investigation of the University of Montana’s response to allegations of sexual assault in May of 2012 under both Titles IV and IX.

Why is the Department of Education involved in sexual assault? Isn’t that a job for law enforcement?

OCR defines sexual violence as a form of sex discrimination, which is prohibited by Title IX. Under Title IX, colleges that accept federal funding are legally required to address and prevent the occurrence of sex discrimination on their campuses, and colleges’ responses to allegations of such behavior are subject to OCRs regulatory oversight. OCR’s April 4, 2011, “Dear Colleague” letter (PDF) instructs college administrators to establish working relationships with local law enforcement officials and states that “a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.” [p. 4] Specifically, OCR states that because the requirements of criminal law and Title IX are different, conduct may still qualify as sex discrimination under Title IX even where there is not sufficient evidence for a criminal conviction. As a result, OCR requires institutions to begin their own Title IX investigations without regard to the status of any criminal investigation that may also be underway.

What is a resolution agreement? 

A resolution agreement is a settlement in which a college or university agrees to take certain actions in return for the Department of Education deeming it to be in compliance with federal civil rights laws like Title IX. Resolution agreements are binding on the institution and outline specific acts or steps the college or university must take to resolve compliance issues, a timetable for implementation, and reporting requirements to verify implementation.

What does the Resolution Agreement with the University of Montana require?

The Resolution Agreement between the University of Montana and the Departments of Education and Justice requires the university to make sweeping changes in its administrative policies. Specifically, the Agreement requires UMT to take more than 40 actions, including:

  • revising all of its policies related to sexual misconduct;
  • revising its student disciplinary code;
  • implementing five different training courses for 1) Title IX compliance staff, 2) Residence Advisers and other sexual discrimination “first responders,” 3) other employees, 4) students, and 5) athletes;
  • instituting annual “campus climate” surveys;
  • developing and implementing a system for tracking and reviewing reports of sex-based harassment;
  • submitting annual reports to the Department of Education;
  • submitting all policy revisions and other material developed under the Agreement to the government for approval.  

That’s just a fraction of the list of the tasks required by the Agreement. Should the university fail to take any of these and other actions in a timely manner, the federal government may take legal action.

What is a findings letter?

At the end of an investigation, OCR issues a letter to the complainant and the institution under investigation determining whether or not there is sufficient evidence to support a finding of noncompliance. The letter must include a statement of the issues raised by the complaint, establish OCR’s jurisdiction, and provide “a clear explanation of the pertinent legal standard and factual analysis. If OCR determines that the school is not in compliance, it will enter into negotiations with the college or university to establish a plan for correcting the deficiency. If the parties reach an agreement, the findings letter will include a copy of the resolution agreement and a statement that, when fully implemented, the resolution agreement will address all of OCR’s compliance concerns. If negotiations have not resulted in an agreement, the letter will contain a description of OCR’s unsuccessful attempts to resolve the complaint.

If the institution under investigation refuses to commit to resolving the issues of noncompliance voluntarily, the Enforcement Office prepares a Letter of Impending Enforcement Action that includes a statement of each contested issue, OCR’s findings of fact for each, and its conclusions based on the applicable law. This letter also explains the consequences of failure to settle with OCR, which can include suspension of all federal funding. If the university and OCR still cannot negotiate a resolution agreement, the Department of Education refers the case to the Department of Justice for litigation.

What is the difference between a resolution agreement and findings letter?

A resolution agreement is a binding settlement mandating that the school signing it take specific actions. A findings letter summarizes the Office for Civil Rights’ investigation of a school’s compliance with its obligations under civil rights laws, including any violations that OCR has determined took place.

What is a “Dear Colleague” letter?

In the context of Title IX enforcement, a “Dear Colleague” letter (DCL) is a policy statement or interpretive guidance from OCR to administrators at educational institutions who receive federal funding to help them comply with the requirements of Title IX.

A DCL can serve as a reminder; for instance, OCR issued one earlier this year reminding schools that it is illegal to retaliate against anyone filing a Title IX complaint. However, DCLs cause confusion and may be unlawful when they go beyond clarifying existing policy and impose new regulations on colleges and universities. For reasons related to the Administrative Procedure Act, described in greater detail below, an agency may not lawfully increase the regulatory burden on the entities it regulates—in this context, colleges and universities that receive federal funding—without giving notice and allowing them to provide comment on the proposed regulations.

Is this federal “blueprint” legally binding on other colleges and universities?

Technically, no—but colleges and universities nationwide will regard it as binding.

The findings letter announcing the conclusion of OCR’s investigation of the University of Montana is not binding on other colleges and universities. OCR states on its website that because its letters of finding “contain fact-specific investigative findings and dispositions of individual cases,” they “are not formal statements of OCR policy and they should not be relied upon, cited, or construed as such.” Indeed, to issue rules that affect all the institutions under the purview of a government agency like OCR, that agency must follow specific procedures, known as rule-making, outlined in the Administrative Procedure Act. OCR has not followed these procedures here.

But colleges and universities that choose to ignore OCR’s findings letter and the accompanying resolution agreement do so at their peril. By deeming the agreement “a blueprint for colleges and universities throughout the country,” OCR has sent an unmistakable signal to institutions nationwide that it will measure compliance with Title IX using the standards announced therein.

In effect, the Resolution Agreement serves as a model for other institutions—and as a “warning shot.” OCR is empowered both to launch compliance investigations and to terminate the federal funding of any college or university that does not comply with Title IX. These threats are enough to force colleges and universities to change their policies, since virtually all institutions in the country receive significant federal funding. (Only a handful do not.) As a result, OCR’s “blueprint” is de facto rule-making, and will be received by colleges and universities nationwide as a binding mandate.

How does OCR define sexual harassment in this blueprint? 

In the findings letter, OCR defines sexual harassment as “any unwelcome conduct of a sexual nature.” [p. 8] OCR makes clear that “unwelcome conduct” includes “verbal conduct”—in other words, speech. [p. 4] Worse still, according to OCR, “[w]hether conduct is objectively offensive … is not the standard to determine whether conduct was ‘unwelcome conduct of a sexual nature’ and therefore constitutes ‘sexual harassment.'” [p. 9] Under this shockingly broad standard, speech that is offensive only to the most unreasonably sensitive person is still sexual harassment.

What’s wrong with OCR’s definition?

Most importantly, OCR’s definition requires universities to prohibit constitutionally protected speech as “sexual harassment.” As a result, real harassment is trivialized and students and faculty nationwide will choose to self-censor rather than risk punishment.

What does this definition have to do with the First Amendment? After all, harassment is not protected speech, right?

The types of speech unprotected by the First Amendment are very limited: true threats, child pornography, so-called “fighting words,” obscenity, defamation, and incitement. Each exception has its own specific and narrow legal definition.

Although harassment may include expressive activity, harassment is properly understood as conduct, not speech. As the United States Court of Appeals for the Third Circuit observed in Saxe v. State College Area School District, 240 F.3d 200, 208, harassment “may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct.” Writing for the majority, former Circuit Judge Samuel Alito (now a Supreme Court Justice) further observed that there is “no categorical rule that divests ‘harassing’ speech, as defined by federal anti-discrimination statutes, of First Amendment protection.” Id. at 210.

In the educational context, harassment is properly understood as targeted, discriminatory conduct that is so severe, pervasive, and objectively offensive and that so undermines and detracts from a student’s educational experience that he or she is effectively denied equal access to an institution’s resources and opportunities.

Has the Supreme Court of the United States provided a definition of sexual harassment in the educational context?

Yes. The Supreme Court has provided a clear standard for student-on-student harassment that simultaneously prohibits harassment and protects speech. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the Supreme Court confronted the question of when a school could be held liable in a lawsuit for damages filed by a student victim of harassment. The Court held that a grade school properly faced liability after it demonstrated “deliberate indifference” to serious, ongoing student-on-student harassment. In reaching this conclusion, the Court formulated a definition of student-on-student harassment. The Court determined that sexual harassment in the educational context is targeted, discriminatory conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Hasn’t OCR said in the past that compliance with its regulations doesn’t require prohibiting speech protected by the First Amendment? 

Yes. In 2003, OCR issued a “Dear Colleague” letter to all university presidents on the subject of the First Amendment. In that letter, the Assistant Secretary for Civil Rights wrote to college administrators: “I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any activities protected under the U.S. Constitution.” OCR further clarified 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.”

By contrast, the blueprint’s definition of sexual harassment necessarily includes protected speech, and the blueprint itself does not mention the First Amendment or free speech even once in 47 pages of text.

Does the blueprint differ from past OCR guidance in other ways?

Yes. The blueprint details and enforces a newly expansive understanding of “sexual harassment” that breaks with OCR’s prior guidance—most specifically, OCR’s 2001 Revised Sexual Harassment Guidance—in several important respects. Most worryingly for student and faculty speech rights, the blueprint signals that colleges and universities receiving federal funding will now have to adopt the broad definition of sexual harassment discussed above as institutional policy. Further, the blueprint rejects OCR’s past conception of “hostile environment” harassment—and with it, the set of “commonsense” evaluative factors OCR had previously used to assess whether conduct constituted sexual harassment, including reference to an objective, “reasonable person” standard. The blueprint explicitly rejects the use of an “objective” standard in determining whether conduct is sexual harassment.

As a result of these differences, discussed in far greater detail here, adopting the blueprint will present colleges and universities with an impossible choice: violate free speech rights by labeling protected speech “sexual harassment,” or risk losing federal funding for failing to comply with OCR’s new interpretation of Title IX’s requirements.

Have courts struck down definitions of sexual harassment similar to OCR’s?

Yes. To give just one example, in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (PDF), the United States Court of Appeals for the Third Circuit struck down a campus anti-harassment policy that, like the blueprint’s definition, failed to require that the allegedly harassing speech be evaluated objectively. The Third Circuit explained why the policy was unconstitutional:

[T]he policy’s use of “hostile,” “offensive,” and “gender-motivated” is, on its face, sufficiently broad and subjective that they “could conceivably be applied to cover any speech” of a “gender-motivated” nature “the content of which offends someone.” This could include “core” political and religious speech, such as gender politics and sexual morality. Id. at 317 (emphasis added; internal citations omitted.)

By defining sexual harassment on campus as simply “unwelcome conduct of a sexual nature” while eliminating the requirement that the speech be objectively offensive, the blueprint violates the First Amendment.

Who decides what speech is “unwelcome”?

One of the biggest problems with OCR’s broad, vague definition of sexual harassment is that it fails to include any “reasonable person” standard—that is, a requirement that the conduct or speech in question be objectively offensive. Instead, under OCR’s new formulation, any sexually related or gender-based expression may constitute sexual harassment if it is subjectively deemed by the complaining student to be “unwelcome.” Per the “blueprint,” this appears to be the case no matter how unreasonable or hypersensitive the complainant is.

Thus, the OCR definition threatens such speech as student discussions of gay marriage or reproductive choice; a campus production of “The Vagina Monologues”; a speaker presentation about safe sex practices; classroom lectures or discussions about literary works such as Lolita; and much more. Despite the protected nature of such speech, under OCR’s definition, all it takes is one person on campus to claim offense and to say that the speech is unwelcome. Yet such expressive activities should be protected and encouraged on a college campus, not made subject to investigation and possibly even punishment because one individual subjectively finds them to be offensive.

Is it an exaggeration to conclude that the new definition includes asking someone out on a date, telling jokes, and discussing politics or morality?

Unfortunately, no. In the blueprint, OCR insists that universities define sexual harassment as any unwelcome sexual or gender-based conduct (including verbal conduct) that is offensive to the listener. This extremely broad definition covers a vast amount of protected speech—including a request for a date that the recipient rejects, jokes involving any sexual or gender-based themes, or discussions of sexual morality or gender roles.

FIRE’s years of experience demonstrate that when harassment is defined this broadly, students and faculty can and will face harassment charges for engaging in a wide range of controversial but protected speech, including core political speech. To take just a few examples:

  • A devout Muslim student at William Paterson University was found guilty of sexual harassment for expressing his religious objection to homosexuality in a private email to a professor.
  • A University of Denver professor was charged with sexual harassment because of anonymous complaints over his teaching of a course segment entitled “Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs,” which focuses in part on the negative effects of “purity crusades.”
  • At Appalachian State University, tenured professor Jammie Price was placed on administrative leave after students alleged that she had created a “hostile environment.” The allegations included making negative comments about the university and its student athletes and showing a documentary on pornography.

For many more examples, visit FIRE’s case archives or read FIRE President Greg Lukianoff’s book, Unlearning Liberty: Campus Censorship and the End of American Debate.

Do other commentators share FIRE’s concerns?

Yes. On his influential blog, The Volokh Conspiracy, UCLA School of Law professor Eugene Volokh concludes after a careful analysis that “sexual jokes, sexually themed posted material, sexual propositions, and so on — is what the government is saying should be treated as ‘unacceptable,’ should be ‘not tolerate[d],’ and should be ‘prevent[ed],’ ‘prohibit[ed],’ and ‘eliminat[ed].'” Hans Bader, a former OCR attorney, calls OCR’s blueprint “a radical departure from Title IX jurisprudence” and says that the definition of harassment as any unwelcome conduct classifies “a single, unrepeated, civil request to go out on a date as ‘sexual harassment’ even if the requester never makes the request again after learning that it was ‘subjectively’ unwelcome.” Volokh’s and Bader’s concerns have been echoed by pundits nationwide, as catalogued on FIRE’s website.

What about due process rights?

The blueprint also violates student and faculty due process rights. It states that in some circumstances, universities may take “disciplinary action against the harasser” even “prior to the completion of the Title IX and Title IV investigation/resolution.” [p. 6] In other words, students and faculty may be punished even before they are found guilty of harassment, and perhaps even before they are charged with infractions. Of course, punishing an accused student before providing that student an opportunity to challenge the accusations defies principles of fundamental fairness enshrined in our Bill of Rights.

These principles were championed by the Supreme Court of the United States in Goss v. Lopez, 419 U.S. 565, 581 (1975), in which the Court held that due process in the educational context requires “precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” A high school case, Goss established a minimum level of due process rights for college students. Disciplining students without basic due process protections would fall well short of Goss bare minimum procedural requirements, and would thus be unconstitutional.

How does this blueprint relate to previous OCR guidance?

While previous OCR guidance has referred to this broad definition of sexual harassment in a general way, this blueprint explicitly requires the University of Montana—and, by extension, any university unwilling to risk a loss of federal funding—to adopt this definition verbatim as functional university policy.

Because of this definition’s breadth, the blueprint also directly contradicts OCR’s 2003 “Dear Colleague letter, in which the agency explicitly stated that Title IX compliance did not conflict with the First Amendment.

Finally, the blueprint’s broad, speech-restrictive definition of sexual harassment is rendered far more dangerous by OCR’s April 4, 2011, Dear Colleague letter, in which the agency mandated that universities use our judiciary’s lowest evidentiary standard—the “preponderance of the evidence” standard—when resolving complaints of sexual harassment. When you combine OCR’s mandate of the lowest evidentiary standard with its mandate of the broadest possible definition of sexual harassment, the risk to free speech on campus grows exponentially.

FAQs for Lawyers

Under what authority can OCR impose its blueprint?

That’s a complicated question. OCR could initiate compliance actions against every college and university in the country and then try to force each one to enter into the same Resolution Agreement as the University of Montana. This, of course, is impossible from a practical standpoint. OCR has the authority to issue regulations and so could impose its new definition of sexual harassment as “any unwelcome conduct of a sexual nature,” as perceived by the target of that conduct, through the rule-making process. However, for the rule to be subject to deference by the courts, it would have to be subject to notice and comment, a lengthy process in which an agency publishes a draft rule, solicits comments from the public, and then incorporates that feedback into the final version. It is hard to see how this unconstitutional definition of sexual harassment would survive that process.

But OCR has a trump card: It has the power to pull federal funding from any college or university that does not comply with Title IX. Since all but a handful of institutions in the country receive significant federal funding, OCR is again betting that institutions will change their policies voluntarily in order to keep the money flowing. This tactic worked in 2011, when OCR issued a controversial “Dear Colleague letter that required the standard of proof in sexual misconduct cases to be our judiciary’s lowest—the “preponderance of the evidence” standard. Colleges and universities obediently changed their policies. This time, FIRE urges universities to push back.

Isn’t this definition of sexual harassment void under the Administrative Procedure Act (i.e., contrary to law)?

This would appear to be the case. The Administrative Procedure Act, 5 U.S.C. § 706(2), states that a reviewing court shall “set aside agency action, findings, and conclusions found to be [] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Because OCR’s definition of sexual harassment includes any unwelcome conduct of a sexual nature, including speech, it is overbroad and violates the First Amendment. Under the plain language of § 706(2), any court would be obligated to strike it down as unconstitutional—meaning, in essence, that OCR’s sexual harassment definition is void.

Isn’t OCR just enforcing the same standards for harassment that already exist in the employment context?

No. In the workplace setting, the Supreme Court has defined hostile environment harassment as conduct that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment.'” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted). This standard, while still too restrictive for allegations of peer harassment in the educational setting, is far more protective of speech than the federal blueprint standard of “any unwelcome conduct of a sexual nature.” The elements of “severe” or “pervasive” conduct in the Supreme Court’s workplace standard require more than an offensive remark or politically charged email. Furthermore, the Supreme Court has made clear that workplace harassment law requires the creation of “an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). The blueprint letter, conversely, rejects the requirement of objectively offensive conduct, and makes clear that subjective offense is sufficient for a finding of sexual harassment.

Thus, OCR’s far broader and more vague definition does not replicate the same standard as workplace harassment law.

The Department of Education has never terminated federal funding for a Title IX violation. What makes FIRE think it would do so now?

Although the Department of Education has not yet withdrawn federal funding from any institution as a result of Title IX violations, it has been increasingly and aggressively taking enforcement actions against institutions that it has deemed noncompliant. In addition to the enforcement action at University of Montana that resulted in this blueprint, other recent examples of OCR enforcement actions against institutions include the actions resulting in settlements with the University of Notre Dame, Xavier University (Cincinnati), and Yale University.

Is someone taking this to the courts? How do I help challenge this blueprint?

FIRE is currently evaluating all available options. We invite attorneys interested in defending student and faculty rights to join our Legal Network.

FAQs for College Administrators

My institution receives millions of dollars in federal funding every year, so we can’t run the risk of not complying with Title IX. Should we change our sexual harassment policies now to avoid trouble down the road?

FIRE understands that colleges and universities—the vast majority of which currently receive federal funding—are placed in an impossible and unenviable position by the new federal mandate. Nevertheless, we believe that universities’ first obligation is to protect their students’ and professors’ First Amendment rights (in the case of public institutions) and to uphold their commitments in official policy to freedom of speech (in the case of private institutions). We hope that schools will remember the primacy of these obligations moving forward and will refrain from enacting wholesale policy changes in light of the blueprint letter.

With respect to sexual harassment and other forms of discriminatory harassment, colleges and universities should continue to follow longstanding Supreme Court precedent. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the Supreme Court defined student-on-student harassment in the educational context as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” As the Supreme Court’s only decision to date regarding the substantive standard for peer harassment in the educational setting, Davis should be followed.

How must colleges respond to complaints regarding protected speech that now fall under OCR’s definition of “sexual harassment”?

According to the blueprint, a university must investigate all possible instances of sexual harassment of which it has either actual or constructive notice:

Under Title IX and its regulations, as well as under Title IV, once a university has actual or constructive notice of possible sexual harassment of students, it is responsible for determining what occurred and responding appropriately. When a university fails to take adequate steps to address harassment, it is held liable under Title IX and Title IV for its own conduct.

The blueprint states that the institution’s response must be immediate:

The United States evaluates the appropriateness of the responsive action by assessing whether it was prompt and effective. What constitutes an appropriate response to harassment will differ depending on the circumstances. In all cases, however, the college or university must conduct a prompt, thorough, and impartial inquiry designed to reliably determine what occurred.

If harassment that creates hostile environment is found, the university must take prompt and effective action to stop the harassment, eliminate the hostile environment, and address its effects. The university must also take steps to prevent the harassment from recurring, including disciplining the harasser when appropriate. [Emphasis added.]

Institutions that fail to respond to harassment effectively, as defined by the blueprint, may be subject to investigation, fines, and even loss of federal funding. However, if an institution were to be punished for failing to punish protected speech, the penalties assessed against the institution would be ripe for constitutional challenge.

FAQs for Faculty 

My class addresses various sexual or gender-based themes. If one of my students is offended by class readings or discussion, have I committed “sexual harassment”?

As the Supreme Court has long recognized: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). In keeping with the Court’s protection of academic freedom, faculty should remain free to teach according to their dictates, and FIRE opposes attempts by government agencies to stifle debate and discussion in college classrooms. It is inevitable that professors’ pedagogical choices will sometimes result in discussions or ideas that offend a few students, but such discussions cannot simply be labeled “sexual harassment.” Instead, students should be reminded that they must answer ideas they find offensive through open debate and discussion, not censorship.

It remains to be seen whether, under the blueprint, professors will face sexual harassment charges for voicing an opinion or covering a topic that a student subjectively deems to be unwelcome. The plain language of the blueprint suggests that they will. Such a development would be unconstitutional. As the Supreme Court has said, “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

How You Can Help 

What action can I take to make sure that this blueprint is not adopted nationwide?

FIRE is glad you asked. Student, faculty, parent, and alumni opposition to this proposed blueprint will be instrumental in its defeat. There are a variety of actions you can take to help, including speaking out publicly about the blueprint’s threat to due process and free speech, writing letters to the editors of campus newspapers and other media outlets, organizing events on campus about the blueprint’s impact on speech, communicating with your university’s administrators about your concerns, writing to your representatives in Congress, and donating to FIRE.

Alumni would likely be particularly effective in making their opinions known to the colleges and universities they attended. University counsels also have the opportunity to play an important role by making their objections to this unconstitutional mandate known to the Departments of Education and Justice and pointing out the impossibility of running a college or university while following these requirements. In all cases, FIRE is eager to help, so please be in touch.

This FAQ is subject to editing and updates as events warrant. If you have a question you’d like to see answered, please let us know!

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