In Landmark Letter, Office for Civil Rights Clarifies the Law and Vindicates Free Speech on Campus

By on August 12, 2003

WASHINGTON, D.C.—The Office for Civil Rights of the Department of Education has issued a landmark letter of clarification that deals a powerful blow to administrative censors on America’s college and university campuses. The July 28, 2003, letter from Gerald A. Reynolds, assistant secretary of the Office for Civil Rights (OCR) of the Department of Education, was sent to colleges and universities across the country on Friday, August 8, 2003. Assistant Secretary Reynolds writes, “No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.”

FIRE and others long have sought clarification of OCR regulations that many academic leaders have cited in support of campus policies that weaken First Amendment protections of freedom of expression. College and university administrators have defended restrictions on free speech on the grounds that OCR and other federal regulations require them to ban “offensive” speech as a form of discrimination. The OCR statement is a vindication of the truth that no governmental regulation, law, or policy may override the First Amendment.

“For too long, colleges and universities have used OCR’s anti-harassment regulations as an excuse for passing restrictive speech codes and punishing students and faculty for ‘offensive’ speech,” said FIRE co-director and Boston attorney Harvey A. Silverglate. “By issuing this letter, OCR has clarified once and for all that OCR regulations cannot and do not trump the First Amendment.”

Among its other duties, OCR provides colleges and universities that receive federal funds with regulations and guidance on issues of discrimination on the basis of race, gender, and other classifications. OCR’s regulations affect virtually every college and university in the United States. Non-compliance with OCR regulations endangers an institution’s receipt of vital federal funds.

Reynolds’s letter undoes years of misinterpretation. It states, “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.” The letter further clarifies that “the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR.”

“This letter will certainly put to rest any claim by future academic administrators that OCR or federal law required them to pass speech codes or punish offensive, hurtful, or rude speech, as is now routine,” Silverglate said. “OCR should be applauded. This letter marks the end of a sad era and the demise of one of the most stubborn pretexts for censorship on America’s campuses.”

The letter also clarifies the proper interpretation of federal laws and regulations by private universities. Though the First Amendment does not directly apply to private institutions, OCR regulations do apply. Those regulations, according to OCR’s letter, must not “be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.” Assistant Secretary Reynolds writes, “Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.”

OCR also restates the law regarding “hostile environment” harassment, saying, “In order to establish a hostile environment, harassment must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student’s ability to participate in or benefit from an educational program.” OCR further reminds colleges and universities that conduct is not punishable harassment merely because a person subjectively feels harassed. Harassment must be “evaluated from the perspective of a reasonable person in the alleged victim’s position.” “This makes it clear,” Silverglate noted, “that the viewpoint expressed in a remark, no matter how offensive or challenging, can never, by itself, constitute harassment.”

Reynolds emphasizes the seamless fabric of American liberty: “There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.”

“OCR has done a great service for liberty today,” said Silverglate. “All too often, the proponents of campus restrictions on speech bizarrely have presented civil rights for women and minorities, on the one hand, and civil liberties, on the other, as somehow at odds with one another. OCR recognizes that there is no inconsistency between civil liberties and civil rights and that civil liberties are a necessary precondition for the continued survival of civil rights.”

The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation’s campuses. FIRE’s ongoing efforts on behalf of freedom of expression and debate can be seen by visiting www.thefire.org.

CONTACT:

Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; greg@thefire.org

Harvey A. Silverglate, Vice President and Co-Director of FIRE: 617-661-9156; has@thefire.org